Metropolitan Bd. of Zoning Appeals of Marion County, Indiana Division 2 v. Standard Life Ins. Co. of Ind., 868A132

• Decision Date: 30 September 1969
• Docket Number: No. 868A132,No. 1,868A132,1
• Citation: 145 Ind.App. 363,251 N.E.2d 60,18 Ind.Dec. 562
• Parties: METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, INDIANA DIVISION, 2, Appellant, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, a Corporation, Appellee
• Court: Indiana Appellate Court

Page 60

251 N.E.2d 60

145 Ind.App. 363

METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, INDIANA DIVISION, 2, Appellant, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, a Corporation, Appellee.

No. 868A132.

Appellate Court of Indiana, Division No. 1.

Sept. 30, 1969.

Rehearing Denied Nov. 14, 1969.

Norman R. Newman, Indianapolis, for appellant.

James L. Beattey, Indianapolis, for appellee.

SULLIVAN, Judge.

This cause originated in the Marion County Metropolitan Board of Zoning Appeals as a petition by appellee Standard Life Insurance Company of Indiana for a use and setback variance. The appellant board denied the petition. Standard Life then sought judicial review by writ of certiorari in the Marion County Superior Court, Room 3. That court reversed the decision of the board and granted the variance which was for the erection and operation of a gasoline service station upon real estate located between Central Avenue and New Jersey Street on Fall Creek Parkway, North Drive in Indianapolis, Indiana.

The sole issue presented to the Superior Court, and therefore to this court upon review, is whether each of five statutory prerequisites for such variance is unequivocally present. We think not and that, therefore, the Superior Court erred in reversing the decision of the board.

In 1955, the Indiana General Assembly enacted legislation which, among other things, adopted more restrictive and specific variance prerequisites for Marion County. ¹ At the time this petition for variance was filed the controlling legislation, being Indiana Acts 1955, ch. 283, § 69, as amended, and as found in Indiana Annotated Statutes § 53--969 (Burns' Supp. 1969), provided insofar as pertinent that a variance could be granted by the board only if it found 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 affected in a substantially adverse manner.

'3. The need for the variance arises from some condition peculiar to the property involved and such condition is not due to the general conditions of the neighborhood.

'4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which the variance is sought.

'5. The grant of the variance does not interfere substantially with the metropolitan comprehensive plan adopted pursuant to sections 31 through 37 of this act.'

It must be emphasized that the board, as an administrative body, presumably expert in the land use problems of its particular jurisdiction, has wide discretion in the granting or denying of zoning variances. Pursuant to existing and binding law, in reviewing any such decision a court may not substitute its discretion for that of the board. Board of Zoning Appeals of the City of Indianapolis v. American Fletcher National Bank & Trust Company (1965), 139 Ind.App. 9, 205 N.E.2d 322. It also must be emphasized that this case concerns the denial of a variance by the board and that the standards for judicial review in such case are significantly different from the standards for judicial review of a board decision which grants a variance. Compare R. J. Realty, Inc. v. Keith, et al (9/22/69), Ind.App., 250 N.E.2d 757. In order to reverse an order of a board which, as here, denies a variance the reviewing court must find that each of the five statutory prerequisites has been established as a matter of law, giving wide construction to the total evidence and resolving all doubts in favor of the board's determination. Board of Zoning Appeals of City of Indianapolis v. American Fletcher National Bank, supra. In other words, the evidence supporting each prerequisite must be such that no reasonable man could fail to accept that prerequisite as proved.

The argument that every decision of a zoning board must be supported by substantial evidence of probative value is too general in that it fails to appreciate the distinction between the denial and the granting of a variance.

The matter of the sufficiency of evidence to support an administrative determination was discussed at length in Warren v. Indiana Telephone Company (1940), 217 Ind. 93, 26 N.E.2d 399, in which the Supreme Court said at page 118, 26 N.E.2d at page 409:

'* * * In the final analysis, the finding of an administrative agency will not be disturbed when it is subjected to the scrutiny of a judicial review, upon the claim that it is not supported by the evidence, unless it is made to appear that the finding does not rest upon a substantial factual foundation. * * *

'* * * If, however, it should be made to appear that the evidence upon which the agency acted was devoid of probative value; that the quantum of legitimate evidence was so proportionately meagre as to lead to the conviction that the finding does not rest upon a rational basis * * * the order will be set aside, * * * because the proof, taken as a whole, does not support the conclusion reached.'

This discussion has been the basis for numerous Appellate and Supreme Court reviews of zoning board proceedings. It has not often been recognized, however that while such discussion is generally applicable to board decisions granting variances, it is germane to board decisions denying variances only insofar as there may be evidence of record which detracts from, or which should be weighed against, other evidence tending to establish a particular statutory prerequisite. See Board of Zoning Appeals of the City of Mishawaka v. School City of Mishawaka (1957), 127 Ind.App. 683, 145 N.E.2d 302. ² Compare Marion County Board of Zoning Appeals v. Trivett (1967), 140 Ind.App. 691, 225 N.E.2d 852; Marion County Board of Zoning Appeals v. Sheffer and Clark, Inc. (1966), 139 Ind.App. 451, 209 N.E.2d 522, 220 N.E.2d 543. It is inappropriate, we think, to require justification of a negative decision by 'substantial evidence' since it is clearly the burden of a petitioner for a variance to establish the existence of each of the five statutory prerequisites. In order for a board properly to deny a variance, it is not always necessary that remonstrators appear and testify or that other evidence be presented in opposition to a variance.

As heretofore indicated, it is not necessary that there be evidence to substantiate the negative decision of the board. However, we might point out that the 'evidence' ³ is conflicting with reference to the fifth statutory requirement and that we cannot conclude as a matter of law that the grant of the variance here sought does not interfere substantially with the metropolitan comprehensive plan.

The 'evidence' most favorable to Standard Life might tend to indicate that the Metropolitan Plan Commission does not contemplate that the real estate in question will or can be used for residential...