Kunz v. Waterman

• Decision Date: 02 June 1972
• Docket Number: No. 671S152,671S152
• Citation: 283 N.E.2d 371,258 Ind. 573
• Parties: Halbert W. KUNZ et al., Appellants, v. Gerald C. WATERMAN and Edna Wuensch Waterman, Appellees.
• Court: Indiana Supreme Court

Page 371

283 N.E.2d 371

258 Ind. 573

Halbert W. KUNZ et al., Appellants, v. Gerald C. WATERMAN and Edna Wuensch Waterman, Appellees.

No. 671S152.

Supreme Court of Indiana.

June 2, 1972.

Rehearing Denied Aug. 25, 1972.

Kent S. Arvin, Eugene W. Lausch, Indianapolis, for appellants.

Gil I. Berry, Jr., Indianapolis, for appellees.

DeBRULER, Justice.

This is an appeal from a judgment of the Marion County Superior Court which reversed a decision of the Metropolitan Board of Zoning Appeals of Marion County, Indiana. The appellees originally petitioned the Board for a variance to allow them to use their residentially zoned real estate for commercial purposes (i.e., the construction of a gasoline service station.) The Board, after proper notice and hearing, denied the requested variance. The owners of the real estate appealed this denial to the Marion County Superior Court, pursuant to I.C.1971, 18--7--2--76, being Burns § 53--974, and that court reversed the Zoning Board and ordered the variance granted. The trial court, in ordering the variance granted, found that the Board acted illegally in denying the variance based on the evidence before it, and also injected a constitutional issue by holding:

'that an ordinance which permanently so restricts the use of property that it cannot be used for any areasonable purpose as presented under the facts of this case goes beyond regulations and constitutes a taking of the property in violation of § 21 and § 23 of Article 1 of the Constitution of the State of Indiana and of the 5th and 4th Amendments to the Constitution of the United States of America.'

This appeal is from that decision, and is before this Court on direct appeal because one of the issue involves a question of rights guaranteed by the State and Federal Constitutions. Indiana Code, 1971, 33--3--2--7, being Burns § 4--214; Metropolitan Board of Zoning Appeals v. Gateway Corp. (1971), Ind., 268 N.E.2d 736.

The real estate in question lies in a D--S zoning district which limits construction in the area to residential dwellings of a certain size and height, and further specifies a minimum lot size (one acre) and minimum setback for any structure. It has long been recognized that this kind of restrictive zoning is valid under the police power of the State, so long as it is carried out in a constitutionally authorized manner. Town of Homecroft v. Macbeth (1958), 238 Ind. 57, 148 N.E.2d 563; Euclid, Ohio v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. In order to escape restrictions on the use of property which a property owner might find particularly onerous because of his particular situation, the property owner can petition the Metropolitan Board of Zoning Appeals to request a use variance as to his piece of property. In order to successfully petition for such a variance, the property owner must convince the Board that:

'1. The grant will not be injurious to the public health, safety, morals, and general welfare of the community.

2. The use or value of the area adjacent to the property included in the variance will not be adversely affected.

3. The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zone.

4. 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.

5. The grant of the variance does not interfere with the metropolitan comprehensive plan adopted pursuant to §§ 31 through 37 ( §§ 53--931--53--937) of this act: 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.' I.C.1971, 18--7--2--71, being Burns § 53--969.

Under the statute applicable at the time this petition for variance was filed, the Board could grant the variance only if they made the above determinations, 'together with . . . detailed written findings of face (sic) sufficient to support such determinations.' Burns § 53--969, supra.

The appellees in this case attempted to obtain a substantial use variance from a one acre minimum residential area to a gas station, but failed to convince the Board that all of these requirements were fulfilled, and as a result, the Board denied the petition for variance. Thereupon the appellees filed a petition in the Superior Court of Marion County alleging that the decision of the Board in denying the variance was illegal in that there was neither substantial nor sufficient evidence to support the finding of said Board in that:

'A. The minimum floor space required by the present use classification would require an expensive dwelling;

B. The area in question presently consists of a Mobil Service Station located on the northeast corner of said intersection; a restaurant located on the west side of said intersection and a Washington Township Fire Station No. 2 being located immediately north of said aforementioned service station;

C. Since the acquisition of the real estate by Plaintiffs in the year 1954, no one has shown the slightest interest to Plaintiffs of acquiring their real estate for a residential plot of land, as said plot of land would be economically undesirable for residential use due to the presence of those set forth in the above paragraph B;

D. The proposed variance of use requested by the Plaintiffs was for the construction of a service station in the southeastern most corner of their plot thereby leaving a substantial portion of said heavily wooded real estate untouched and available for residential use if needed;

E. The western boundary of said real estate abuts on Indiana State Road 421, a major thoroughfare which said thoroughfare is heavily traveled and a major artery of Marion County, Indiana, and which has previously necessitated the erection of an automatic traffic signal at the intersection in question.'

Pursuant to the receipt of this writ, the Superior Court ordered the zoning administrator of the Metropolitan Board of Zoning Appeals, Marion County, Indiana, to produce a full and complete transcript of the proceedings before the Board so that the court could make a complete determination of the issues involved. According to I.C.1971, 18--7--2--80, being Burns § 53--978:

'The return to the writ of certiorari by the board of zoning appeals must concisely set forth such facts and data as may be pertinent and present material to show the grounds of the decision appealed from.'

The Board in this case did produce a complete record of the originals of all papers, pleadings and documents filed with or introduced before it at its meeting on this issue, but did not include their own findings of fact nor the grounds upon which their decision was based. We re-affirm the position here, recently reiterated in Carlton v. Board of Zoning Appeals (1969), 252 Ind. 56, 245 N.E.2d 337, that the Board must in all cases set out written findings of fact in support of their decision so that this Court may intelligently review that specific decision without speculating as to the Board's reasoning. Written findings of fact help to maintain the integrity of the Board's...