McGraw v. Marion County Plan Commission, 19174

• Decision Date: 17 May 1961
• Docket Number: No. 19174,19174
• Citation: 174 N.E.2d 757,131 Ind.App. 686
• Parties: Eldon McGRAW, Jeanne McGraw, Willis C. Carter, Helen L. Carter, Joe Levi, Sarah Levi, Paris Belcher, Thelma Belcher, Edward French, Ellen French, Harvey Lewis, Estelle Lewis, Earl F. Sharp, Evonelle Sharp, Ralph E. Monroe, Eleanor R. Monroe, Mildred Milby, Dema Kennedy, Elsie M. Kennedy, Ralph Sichler, Norma A. Sichler, Appellants, v. MARION COUNTY PLAN COMMISSION, Harry Adler and Elizabeth Adler, Appellees.
• Court: Indiana Appellate Court

Page 757

174 N.E.2d 757

131 Ind.App. 686

Eldon McGRAW, Jeanne McGraw, Willis C. Carter, Helen L Carter, Joe Levi, Sarah Levi, Paris Belcher, Thelma Belcher Edward French, Ellen French, Harvey Lewis, Estelle Lewis Earl F. Sharp, Evonelle Sharp, Ralph E. Monroe, Eleanor R Monroe, Mildred Milby, Dema Kennedy, Elsie M. Kennedy, Ralph Sichler, Norma A. Sichler, Appellants, v. MARION COUNTY PLAN COMMISSION, Harry Adler and Elizabeth Adler, Appellees.

No. 19174.

Appellate Court of Indiana, In Banc.

May 17, 1961.

Raymond J. Justak, Martine H. Justak, Indianapolis, for appellants, Justak & Justak, Indianapolis, of counsel.

William F. LeMond, Robert S. Smith, Indianapolis, for appellees.

MYERS, Judge.

This is an appeal from a judgment of the Marion Circuit Court declaring a 'decision' of the Marion County Plan Commission to be legal and proper.

Appellees, Harry and Elizabeth Adler, were the owners of an unimproved tenacre tract of real estate located on the east side of U. S. Highway 421 at 63rd Street, north of the city limits of Indianapolis, in Marion County, Indiana. At the time this action was commenced, it was zoned for residential purposes only in accordance with the Marion County Master Plan Permanent Zoning Ordinance.

On May 29, 1956, the Adlers filed a petition with the Auditor of Marion County requesting that the zoning ordinance be changed, in so far as it pertained to their real estate, from a residential-zoned district so as to permit the construction and operation of a shopping center.

It is provided by statute (§§ 53-764, 53-765, Burns' 1951 Replacement) that any proposed ordinance for the amendment, supplement or repeal of a zoning ordinance not originating from the Plan Commission shall be referred by the Auditor to the Plan Commission for consideration and report before final action can be taken by the Board of County Commissioners, which is and was then charged with the duty of adopting such ordinances. The Adlers' petition was duly referred to the Plan Commission, which published notices and held a hearing on the matter on June 21, 1956. The Plan Commission voted 6-3 in favor of the re-zoning requested. The board of County Commissioners adopted an ordinance on the 27th day of June, 1956, wherein it changed the zoning classification of the Adlers' ten-acre tract from residential to commercial.

The appellants were all property owners in the neighborhood and vicinity of the tenacre lot. On July 20, 1956, they filed their duly verified petition for writ of certiorari in the Marion Circuit Court, pursuant to § 53-755, Burns' 1951 Replacement, alleging that the 'decision' of the Plan Commission was arbitrary, illegal and void, setting forth their reasons. Summons was issued, notices of the application for the writ were filed, and the trial court entered an order to appear and show cause why the writ should not issue. The Plan Commission and the Adlers were named as party defendants. The Marion County Board of Commissioners was not made a party to the action.

On August 9, 1956, appellee, Plan Commission, filed a motion to dismiss based upon the ground that the recommendation of the Plan Commission was not a 'decision,' and thus the Circuit Court had no jurisdiction over the subject-matter of this cause. The court overruled the motion and ordered the writ of certiorari issued. It was served on the Commission and copies given to the Adlers. A return to the writ was filed by the Plan Commission containing all the records of the case and including the minutes of the meeting held before the Plan Commission on June 21, 1956, in so far as they applied to the Adlers' property.

Appellants filed a motion for judgment on the record and pleadings. This was overruled. Later, the parties filed a Stipulation of Evidence to Supplement the Return to the Writ. Oral arguments were held, and on January 3, 1958, the court entered a judgment against appellants and in favor of appellees, finding that the decision of the Plan Commission was not illegal. Appellants filed their motion for new trial in which they state that: (1) The decision of the court is not sustained by sufficient evidence; (2) The decision of the court is contrary to law; and (3) The court erred in overruling petitioners' motion for judgment on the record and pleadings.

The motion for new trial was overruled on February 24, 1958, and this appeal followed. The assignment of errors is based on the overruling of appellants' motion for new trial and on the overruling of appellants' motion for judgment on the record and pleadings.

The appellants have filed their petition for a writ of certiorari, pursuant to § 53-755, Burns' 1951 Replacement, supra, which reads as follows:

'A decision of the commission may be reviewed by certiorari procedure the same as that providing for the appeal of zoning cases from the decision of the board of zoning appeals.

'A petition for certiorari shall specify the grounds upon which the petition alleges the illegality of the commission's action. Such petition must be filed in the circuit court of the county in which the land is located within 30 days after the date of such decision.

'A change of venue from the county in which the property is located shall not be had in any cause arising under the provisions of this section.'

This case involves an action by the Marion County Plan Commission. The question to be decided here is whether the term 'decision' as used in the statute includes the action taken by the Commission so as to permit a writ of certiorari to lie herein. To determine this, we must look at the Acts of 1947 (Acts 1947, Ch. 174, p. 571, being § 53-701 et seq., Burns' 1951 Replacement), entitled 'An Act for the development, through planning and zoning, of urban and rural areas.'

Pursuant to section one of that act, each city council, town board of trustees, and each board of county commissioners in the state may by ordinance create a Plan Commission to promote the orderly development and future growth of its community. As we are concerned herein with a County Plan Commission created by the Board of County Commissioners of Marion County, we shall refer to the act only as it pertains to County Plan Commissions.

The statute reads, in part, as follows:

'In accomplishing this objective, it is the intent of this legislation that the plan commission shall serve in an advisory capacity to presently established boards and officials, and in addition, that certain regulatory powers be created over developments, affecting the public welfare and no now otherwise controlled, and that additional powers be granted legisltive bodies of cities, towns and counties to carry out the purposes of this act.' Section § 53-701, Burns' 1951 Replacement.

(It is to be noted that, in so far as Marion County goes, this act has been superseded by the Metropolitan Plan Commission Act of 1955, being Chapter 283 of the Acts of 1955, as amended; § 53-901 et seq., Burns' 1951 Replacement [Supp.]).

The act proceeds to declare the membership of a Plan Commission and its powers and duties. Among others, it is given the power to make 'recommendations' to the board of county commissioners concerning the status of planning within its jurisdiction. Its prime duty is to prepare a master plan for the development of the county in regard to future growth, land use, streets and highways, sewers and sanitation, parks and recreation, public buildings and institutions, and other factors which are a part of the physical, economic or social situation within the county. Section 53-734 (Supp.), § 53-735, Burns' 1951 Replacement.

The Commission is empowered to adopt a master plan after holding a public hearing, and certify it to the Board of County Commissioners in the form of an ordinance, with a 'recommendation' thereof. Section 53-739, Burns' 1951 Replacement. If the County Commissioners do not take any final action on such certification of the plan and ordinance within sixty days thereafter, it is to have the same effect as all other ordinances. Section 53-740, Burns' 1951 Replacement.

However, if the County Commissioners reject the plan or amend it, the law provides that it shall be returned to the Plan Commission for its consideration, together with written reasons for its rejection or amendment. The Commission has 45 days to consider the matter. If it approves the amendment, the ordinance shall stand as passed by the County Commissioners. If the Plan Commission disapproves the amendment or rejection, the County Commissioners' action shall stand only if confirmed by unanimous vote. If the Plan Commission fails to file a report within 45 days, the action in amending or rejecting the ordinance becomes final. Section 53-741, Burns' 1951 Replacement.

After adoption of the master plan, amendments may be proposed by the Plan Commission, the County Commissioners, or by the owners of 50 per cent. or more of the area involved in the petition. Sections 53-742, 53-764, 53-765, Burns' 1951 Replacement.

All actions to be taken by the Plan Commission are tentative and preliminary. At all times 'final action' on any zoning or re-zoning plan or amendment must be taken by the County Commissioners. They, together with city councils, are affirmatively given the power and duty to classify, regulate and determine the use of all lands and buildings within their respective jurisdictions. Section 53-756, Burns' 1951 Replacement. Throughout this act, the duties of a Plan Commission are to 'recommend,' 'to consider and report,' and 'to make recommendations.' While it can adopt a master plan or amendment thereto, it can only 'recommend' passage of it as a proposed ordinance. No action on the part of the Plan Commission may cause an ordinance to become effective. Only action on the part of the Board of County Commissioners or its inaction for a period of sixty days may cause an ordinance to become effective.

It must be remembered that the first section of the 1947...