Metropolitan Bd. of Zoning Appeals of Marion County, Second Division v. Rumple, 973S192
|Supreme Court of Indiana
|261 Ind. 214,301 N.E.2d 359
|27 September 1973
|METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, SECOND DIVISION, et al., Appellants, v. Paul V. RUMPLE, Appellee.
This case first originated by a petition, filed by appellee with the Metropolitan Board of Zoning Appeals, which requested a use variance to permit a residentially zoned house and lot to be used for 'professional offices and business use'. The Board unanimously denied the requested use variance. The appellee sought review of this decision pursuant to the then existing I.C. 18--7--2--76, being Burns § 53--974, in the Marion Superior Court, Room 6, the Honorable Rufus C. Kuykendall, Judge, presiding; and that proceeding resulted in a judgment reversing the decision of the Board. The Board appealed to the then existing Appellate Court of Indiana which first issued an order and opinion at 274 N.E.2d 727, remanding the cause to the trial court for special findings of fact and conclusion of law pursuant to TR. 52(A)(2), I.C. 1971, 34--5--1--1, and upon receipt of those findings turned to the merits of the appeal and unanimously affirmed by opinion at 276 N.E.2d 220. The Appellate Court denied rehearing with one judge dissenting with opinion at 277 N.E.2d 921. The petition of the Board to transfer is now granted.
Appellee was seeking, by his petition, a variance of 'use', to permit him to use a private residence and lot for a law and business office with off-street parking and a sign in the yard. The house and lot are located on Parker Avenue, one-half block South of the intersection of Parker and 38th Streets in the City of Indianapolis. The city block in which the property is located is bisected by an alley which parallels 38th Street and which forms the North boundary of the said property. This alley runs behind the lots which front on 38th Street and forms a natural boundary between those 38th Street lots which are used and zoned for business and commercial purposes and the lots South of the alley along Parker Avenue including the subject property, which are used and zoned for private residential purposes. The maps and other evidence before the Board showed that this entire area including 38th Street was formerly a residential area, but that more recently 38th Street had become a highly commercialized and volatile street for development carrying an enormous traffic load.
At the hearing before the Board, the petitioner sought to persuade the Board in his favor by showing the proximity of the subject property to the commercial lots to the North and by showing that his specific use proposals would be minimally disruptive of the existing zoning scheme and would in several respects enhance the neighborhood. No residential neighbors appeared against the petition, and in fact many were shown to support it. The Executive Director of the Metropolitan Plan Division strongly opposed the petition, and appeared by counsel at the hearing and presented a written report and made argument against the petition. That report was received by the Board and at the hearing the following exchange occurred between the Chairman of the Board and the petitioner about the report:
The Staff Report contained the following description of the history of the subject property and the grounds upon which the staff recommended denial of the variance:
'1. Several years ago due to considerable pressure for business use on East 38th Street, the staff was requested to make a lot by lot inspection of the street in order to stabilize the residential areas and propose more orderly business expansion. Since most of the business proposals were being requested by the variance system, the staff met with the Board of Zoning Appeals, with various property owners of the area as well as with the Plan Commission. It was agreed upon by all concerned that no attempt would be made to preclude business uses in those areas already highly penetrated by business uses and beyond preservation. It was further agreed upon that the stable residential areas should be saved.
2. Most of the pressure for business conversions were across from the Meadows apartments between Oxford Street and Sherman Drive. There were several professional offices in the area intermixed with stable residential lots.
3. The major problems to the area were the inadequate size of most lots for proper development into business uses, and the adverse effect upon 38th Street traffic with business access to each property.
4. After careful study, this area was proposed by the staff as a business office district. Performance standards were developed to control either conversion of existing residential structures or development of new business structures. These performance standards provided a basis for sound business office development by requiring screening, adequate parking, setbacks and ingress and egress conformance that would be compatible with adjacent residences.
5. To date these policies have not been violated. There are a considerable number of lots available for office use in the Oxford-Sherman area. It is undesirable and unnecessary to allow business encroachment into the residential neighborhood.
6. It is imperative that the alley south of the lots fronting on 38th Street be held as the commercial boundary. It is the only logical physical boundary that can be maintained.
7. The use of this lot poses serious problems to the lots south and the lots across the street and would, if granted, promote a business string on a local neighborhood street.
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