Lutz v. New Albany City Plan Com'n

• Decision Date: 16 October 1951
• Docket Number: No. 28708,28708
• Citation: 230 Ind. 74,101 N.E.2d 187
• Parties: LUTZ et al. v. NEW ALBANY CITY PLAN COMMISSION et al.
• Court: Indiana Supreme Court

Page 187

101 N.E.2d 187

230 Ind. 74

LUTZ et al. v. NEW ALBANY CITY PLAN COMMISSION et al.

No. 28708.

Supreme Court of Indiana.

Oct. 16, 1951.

William L. Mitchell, Evansville, Robert R. Kelso, New Albany, for appellants.

Paul J. Tegart, Chester S. Wentzell, Bulleit & Orbison, Richard C. O'Connor, Jacob G. Rudy, New Albany, for appellees.

JASPER, Judge.

This appeal was taken from the judgment of the trial court, reviewing by certiorari the decision of the Board of Zoning Appeals of the City of New Albany, as provided under § 53-783, Burns' 1951 Replacement. The judgment of the trial court upheld the legality of the decision denying a variance by the Board of Zoning Appeals.

Appellants' sole assignment of error is the overruling of their motion for a new trial.

Appellants contend that the action of the Board of Zoning Appeals was illegal for the reason that prior to the time of the passage of the zoning ordinance appellants had entered into a lease in which the rights, obligations, and liabilities thereunder had become vested; and further, that prior to the passage of the ordinance the real estate of appellants was in the process of conversion to a gasoline filling station; and that the application of the zoning ordinance as applied to appellants is a violation of Article 1, Section 24, of the Constitution of Indiana, and Article 1, Section 10, of the Constitution of the United States, and the Fourteenth Amendment to the Constitution of the United States.

The petition for a writ of certiorari, captioned by appellants as a complaint and petition for certiorari, was filed and later amended. Appellees filed an answer under our Rule 1-3. These pleadings would tend to show that the case was tried de novo instead of being reviewed by the trial court to determine the legality of the decision of the Board of Zoning Appeals of the City of New Albany. Section 53-788, Burns' 1951 Replacement, provides, in substance, that the trial court cannot hear the case de novo. However, the order of the trial court allowing additional evidence to be introduced to supplement the return to the writ shows that the trial court was following the correct procedure. Therefore, from the complete record, we find that this appeal comes to us from a review by the trial court upon its determination that the decision of the Board of Zoning Appeals of the City of New Albany was legal. It was not a trial de novo.

From the return to the writ of certiorari, and the supplemental evidence introduced, the following pertinent facts appear:

On July 9, 1946, George H. Bacher and Margaret P. Bacher were the owners of the South 120 feet of Lot 11 and the West 18 feet of Lot 12 of Block 28 of the Whitehill tract in the City of New Albany. On the last-mentioned date the owners of the real estate executed in writing to The Texas Company a ninety-day option to purchase the aforementioned real estate for $11,000. The option, among other things, provided that the buildings on the real estate were to remain the property of George H. Bacher and Margaret P. Bacher, and that they were to have six months after the exercising of the option by the optionee to remove the buildings from the real estate. The optionors were to pay three per cent. interest on the purchase price for the six-month period allowed for removal, the interest to be paid to The Texas Company or its nominee. This option was assigned to Philip Lutz, Jr., and Marie E. Lutz. On July 17, 1946, a lease was entered into by Philip Lutz, Jr., and Marie E. Lutz, leasing the real estate to The Texas Company. The lease called for the construction of a 2-bay gasoline service station to be erected by the lessors. The Texas Company, on October 4, 1946, notified George H. Bacher and Margaret P. Bacher of the assignment of the option to Philip Lutz, Jr., and Marie E. Lutz, and that they were exercising the option. On November 26, 1946, the real estate involved herein was conveyed by warranty deed to Philip Lutz, Jr., who applied to the Civilian Production Administration for authority to build the service station. The application was denied. A mortgage loan for the construction of the service station was applied for and a commitment given. On February 1, 1947, George H. Bacher and Margaret P. Bacher removed the house and had the lots cleared as provided for under the option. The zoning ordinance passed by the City of New Albany became effective on February 27, 1947, placing the lots involved herein in Class U2, which class permitted residences and apartment houses to be erected, but did not permit the erection of gasoline service stations. On May 22, 1947, Philip Lutz, Jr., died, leaving a last will and testament under which appellants became the owners of the two lots. On June 18, 1949, a final report in the estate of Philip Lutz, Jr., was filed showing that at the date of his death he was the owner of the vacant lots. On April 2, 1949, John P. Lutz filed with the Board of Zoning Appeals of the City of New Albany an application for a variance from the requirements of the zoning ordinance to permit the erection of a 2-bay service station. After a public hearing, in which statements and evidence were heard, the variance was denied, and an appeal taken. On April 5, 1949, The Texas Company sent to appellants and one Mary K. Lutz a new lease to be effective May 1, 1949, which lease was executed. The lease was the same as the prior lease except for a few changes not pertinent to this appeal. It also called for the construction of a 2-bay service station to be completed in 180 days. Section 10 of the zoning ordinance of the City of New Albany provided, among other things, for the continuance of nonconforming uses existing at the time of the passage of the ordinance. Therefore, we must first determine whether there was a nonconforming use existing when the ordinance was passed.

Zoning ordinances ordinarily have no retroactive effect and work no disturbance with existing uses of property. Real estate used for business may continue in such use, although later included in the residential district where such use in prohibited. In other words, existing uses need not conform to the zoning ordinance. The words 'existing use' were interpreted in Chayt v. Board of Zoning Appeals, 1939, 177 Md. 426, 434, 9 A.2d 747, 750, wherein the court said: 'Therefore on the question whether the terms of the ordinance permit classifying a purpose then merely contemplated, or intended for the future, as a use that existed at the time of the passage of the ordinance, the conclusion of this court has differed from that of the court below. 'As understood in the ordinance, 'existing use' should mean the utilization of the premises so that they may be known in the neighborhood as being employed for a given purpose; i. e., the conduct of a business. Ordinarily an existing use for business combines two factors: (a) Construction or adaptability of a building or room for the purpose, and (b) employment of the building or room or land within the purpose.''

It is necessary therefore to determine whether or not, under the facts in the case now before us...