Kessler-Allisonville Civic League, Inc. v. Marion County Bd. of Zoning Appeals

• Decision Date: 19 July 1965
• Docket Number: KESSLER-ALLISONVILLE,No. 2,No. 20264,20264,2
• Citation: 209 N.E.2d 43,137 Ind.App. 610,6 Ind.Dec. 109
• Parties: CIVIC LEAGUE, INC., et al., Appellants, v. MARION COUNTY BOARD OF ZONING APPEALS et al., Appellees
• Court: Indiana Appellate Court

Page 43

209 N.E.2d 43

137 Ind.App. 610

KESSLER-ALLISONVILLE CIVIC LEAGUE, INC., et al., Appellants, v. MARION COUNTY BOARD OF ZONING APPEALS et al., Appellees.

No. 20264.

Appellate Court of Indiana, Division No. 2.

July 19, 1965.

Rehearing Denied Aug. 16, 1965.

Transfer Denied Oct. 7, 1965.

[137 INDAPP 611]

L. J. Mills, Indianapolis, White, Mills, Hoffmark & Pantzer, Indianapolis, of counsel for appellants.

Norman R. Newman, Indianapolis, Dann, Backer & Pecar, William F. Lemond, William B. Patrick, Nick G. Ricos, Indianapolis, of counsel for appellees.

HUNTER, Judge.

This is an appeal from a review by the Marion County Superior Court of a variance granted by the Marion County Board of Zoning Appeals. The petitioners (also, appellees herein) petitioned the Board for approval to construct five (5) apartment buildings containing 126 units on a 9.4 acre tract of land in the northeast quadrant of Kessler Boulevard and Allisonville Road in Marion County. The variance from an R-1 classification was granted and several adjoining landowners and the Kessler-Allisonville Civic League, Inc., filed a petition for writ of certiorari which writ was thereafter issued. The trial court entered judgment upholding the decision of the board and entered special findings of fact and conclusions of law thereon.

Appellants allege that the trial court erred in overruling their motion for a new trial. There are several questions presented under this assignment which we will consider separately.

Appellants argue that the trial court, in its special findings, did not comply with Supreme Court Rule 1-7C which provides:

'In all actions to modify, set aside, vacate or enjoin the carrying out of any order of any board, bureau, commission, or administrative body, or upon any appeal therefrom, the court hearing the matter shall find the facts specially and state its conclusions of law thereon which constitute the grounds of its action including the granting or refusal of any interlocutory order or the entering of any judgment.'

[137 INDAPP 612] To adequately demonstrate the question on this point, we must set forth the trial court's findings of fact, which are in pertinent part as follows:

'1. That the plaintiffs are aggrieved by a certain decision of the defendant, Marion County Board of Zoning Appeals, made at public hearing on the 10th day of September, 1963, wherein a variance was granted authorizing the construction of three (3) two and one-half story apartment buildings and two (2) four-story apartment buildings upon a certain 9.4 acre tract of land owned by defendants, William V. Lawler and Ruth R. Lawler, in Marion County, Indiana, and more particularly described as follows:'

(here, the property is described)

'2. That all of the evidence in this cause, the transcript of proceedings before the defendant administrative board, and the exhibits introduced therein and herein, disclose that there was substantial evidence of probative value authorizing the grant of the variance on the grounds that:

'(a) The grant will not be injurious to the public health, safety, morals and general welfare of the community;

'(b) The use or value of the area adjacent to the property included in the variance will not be adversely affected;

'(c) A need for the variance arises from some condition peculiar to the property and does not exist in similar property in the same zone;

'(d) The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought;

'(e) The grant of the variance does not interfere with the Metropolitan Comprehensive Plan adopted pursuant to Sections 31 through 37 of this Act (ch. 382, Acts 1955); provided that, no zoning ordinance or ordinances classifying or restricting the use of or otherwise applicable to the property involved shall be considered to be a part of such Metropolitan Comprehensive Plan.

[137 INDAPP 613] '3. That the plaintiffs in this cause failed to introduce any evidence disclosing that the decision of the administrative body appealed from was arbitrary, capricious, illegal, and without foundation in law or fact.

'4. That the defendant, Marion County Board of Zoning Appeals, did make a detailed finding of fact and decision legally sufficient to justify its determination and decision.

'5. That the defendant, Marion County Board of Zoning Appeals, does have the legal authority, independent of the Metropolitan Plan Commission of Marion County, to authorize a change in use of land within its territorial jurisdiction upon a proper showing of evidence pursuant to special finding of facts, as set forth in paragraph 2(a), (b), (c), (d), and (e) above, which said defendant administrative board properly exercised in this cause.

'6. That all of the evidence in this cause fails to disclose that the zoning hardship existing upon the land in controversy was imposed by acts or omissions of the defendant property owners, William V. Lawler and Ruth R. Lawler.

'7. That the defendant, Marion County Board of Zoning Appeals, is not compelled to base its decision upon the written opinion of the administrative staff of the Metropolitan Plan Commission of Marion County, and disregarding said written opinion was not an arbitrary, capricious, or illegal act.

'8. That there was no evidence introduced which evidences that the plaintiffs in this cause are suffering a taking of their property without just compensation.

'9. That the evidence and facts in this cause are with the defendants and against the plaintiffs.'

It is alleged that these findings are insufficient in that they are too general by being in the words of the statute and that therefore, they do not follow the rule of the cases of Pub. Serv. Comm. v. Ft. Wayne [137 INDAPP 614] U. Ry. Co. (1953), 232 Ind. 82, 111 N.E.2d 719, and Kosciusko County, etc. v. Public Service Comm. (1948), 225 Ind. 666, 77 N.E.2d 572.

These cases involved review of Public Service Commission orders wherein said Commission did not enter special findings sufficient to base a proper conclusion. The Indiana Supreme Court stated the rule that special findings of the Commission in its decision must be specific enough to enable the reviewing court to consider the Commission's decision intelligently in Pub. Serv. Comm. v. Ft. Wayne U. Ry. Co., supra, 232 Ind. at p. 97, 111 N.E.2d 719. The Kosciusko case, supra, recognizes that there must be special findings of fact upon which the conclusions to be determined can be reached. Notwithstanding the fact that both of the above cases concern judicial review of administrative orders and not judicial review of a trial court's judgment and are otherwise not in point, we recognize these to be general rules governing special findings of fact. With these rules in mind, we must hold that the trial court did not err in its special findings of fact.

The trial court's is given a guideline in Burns' Sec. 53-979 as to the extent of its review of Zoning Board decisions:

'The court may decide and determine the sufficiency of the statements of illegality contained in the petition without further pleadings and may make its determination and render its judgment with reference to the legality of the decision of the board of zoning appeals on the facts set out in the return to the writ of certiorari.

If the court determines that testimony is necessary for the proper dispostion (disposition) of the matter, it may take evidence to supplement the evidence and facts disclosed by the return to the writ of certiorari, but no such review shall be by trial de novo.

In passing upon the legality of the decision of [137 INDAPP 615] the board of zoning appeals, the court may reverse or affirm, wholly or in part, or may modify the decision of the board of zoning appeals brought up for review. * * * (Acts 1955, ch. 283, Sec. 79, p. 786.)' (Our emphasis.)

We have recently held that when reversing the Board's denial of a variance, all of the statutory causes for such variance must be unequivocally present considering the evidence presented before the Board and before the trial court. Board of Zon. App. v. American Fletcher Nat. B. & T. Co. (1965), Ind.App., 205 N.E.2d 322. This is the rule when...