Metropolitan Bd. of Zoning Appeals of Marion County (Division II) v. Gateway Corp.

• Decision Date: 23 April 1971
• Docket Number: No. 1069S250,1069S250
• Citation: 268 N.E.2d 736,256 Ind. 326
• Parties: The METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY (DIVISION II), et al., Appellants, v. GATEWAY CORPORATION, John C. Hart, Appellees.
• Court: Indiana Supreme Court

Page 736

268 N.E.2d 736

256 Ind. 326

The METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY

(DIVISION II), et al., Appellants, v. GATEWAY CORPORATION, John C. Hart, Appellees.

No. 1069S250.

Supreme Court of Indiana.

April 23, 1971.

Norman R. Newman, Indianapolis, for appellants.

William F. LeMond, Indianapolis, for appellees.

GIVAN, Judge.

The appellee petitioned the appellant Board of Zoning Appeals for a use variance. The land for which the variance was sought was located in an area zoned for single family dwellings. The appellee desired to construct 24 townhouse (multiple family) units with off-street parking on the land. The subject land consists of six adjacent lots owned by the appellee. The appellant Board refused the variance. As a result, appellees petitioned for a writ of certiorari. The hearing on the writ resulted in the reversal of the Board decision and the following findings:

'1. Gateway Corporation is an Indiana corporation owning real properly in Indianapolis, Indiana, commonly known as 5632, 5638 and 5646 North College Avenue, and more particularly described as Lots 443 through 448, inclusive, in Light's Belleview Addition to the City of Indianapolis, per plat thereof recorded in Plat Book 11, Page 36, in the Office of the recorder of Marion County, Indiana.

2. The Petitioner, Gateway Corporation is aggrieved by the decision of the Respondent, Metropolitan Board of Zoning Appeals of Marion County, Division II, rendered August 15th, 1967, in Case No. 67--V2--161, denying the Petitioner the authority to construct twenty-four (24) townhouses on the above-described property.

3. The evidence in this cause discloses that the public authority, to-wit: The Marion County Health and Hospital Corporation, compelled the Petitioner to remove residential improvements upon the subject property because of age and obsolescence as the magnitude of repairs ordered by the public authority were a practical impossibility to perform from an economic standpoint.

4. Following the removal of aged and obsolete residential structures under order of the public authority, all of the evidence in this cause discloses there was no reasonable or practical method by which the owner of the subject property could enjoy any reasonable beneficial use of the property as it was zoned.

5. The evidence in this cause discloses that the Defendant, Metropolitan Board of Zoning Appeals of Marion County, and its predecessor Board of Zoning Appeals had repeatedly and continuously over a long period of years granted similar relief as requested by the petitioner from the same oppressive zoning restrictions on similarly situated properties in the same general geographic area, but in this singular instance, said Defendant repeatedly rejected this Petitioner relief from the unreasonable and unrealistic zoning restriction upon its land.

6. That an ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose as presented under the facts of this case goes beyond regulation and constitutes a taking of the property in violation of Sections 21 and 23 of Article I of the Constitution of the State of Indiana and of the 5th and 14 (sic) amendments to the Constitution of the United States of America.

7. That the law in this case is with the Petitioner, Gateway Corporation, and against the Respondents.

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the finding and decision of the Metropolitan Board of Zoning Appeals of Marion County, Indiana, Division II * * * is declared to be illegal and it is hereby reversed in whole and the Petitioner, Gateway Corporation, be, and it is, hereby authorized to construct twenty-four (24) townhouse units as petitioned for before the Defendant Board * * *.'

It is from this decision that the appellant Board appeals to this Court.

In the proceedings below the appellee filed a petition to present supplemental evidence at the hearing on the petition for certiorari. The petition was granted and supplemental evidence was admitted.

John C. Hart owned a fractional interest in Corporation 15 and also owns an interest in Gateway Corporation. The former corporation conveyed the land in question to the latter in November, 1965. Subsequently the Marion County Health and Hospital Corporation ordered certain repairs to be made on the improvements, contained on the land, or in the alternative, to tear them down. The decision was made, based on economic feasibility, to tear down the improvements. John C. Hart testified at the hearing on the writ that the taxes and maintenance exceed the gross income derived from the property torn down.

The case comes directly to this Court because of an alleged violation of provisions of the Indiana and United States Constitutions.

Burns' Ind.Stat., 1968 Repl., § 4--214, I.C.1971, 33--3--2--7, states in pertinent part as follows:

'* * * Hereafter all appeals in appealable cases in the following classes shall be taken directly to the Supreme Court of Indiana, as follows:

First. All cases in which there is in question, and such question is duly presented * * * the validity of an ordinance of a municipal corporation * * * or the rights guaranteed by the state or federal constitution.'

The appellant contends that the petitioner failed to raise the question of constitutionality of the ordinance before the Board, thereby waiving it.

The appellant concedes that the question of constitutionality of an ordinance as it applies to a particular parcel of real estate may be raised before the Board by a petition for variance. See Town of Homecroft v. Macbeth (1958), 238 Ind. 57, 148 N.E.2d 563. However, it contends '* * * that Appellee, Gateway Corporation, wholly failed and neglected to make any assertion or raise any question concerning the unconstitutionality of the zoning ordinance before the Board of Zoning Appeals.'

In the Homecroft case, supra, the Board of Zoning Appeals also denied a use variance to the petitioner who sought review by a writ of certiorari. The trial court in that case reversed the Board and granted the variance. While before the Board the petitioner introduced evidence

'* * * that the refusal of a variance under the existing circumstances constituted an undue hardship on him by depriving him of the use of his property to such an extent that it became a taking of his property without compensation. * * *' (238 Ind. at 62, 148 N.E.2d at 566)

This Court then stated,

'* * * the writ of certiorari did not charge the zoning ordinance was void in its entirety, but asserted that it was invalid and unconstitutional as it affected his property under the existing circumstances. Appellee properly sought his remedy by petition for a variance before the Board of Zoning Appeals. City of East Chicago v. Sinclair Ref. Co. (1953), 232 Ind. 295, 111 N.E.2d 459, and authorities therein cited. As we said in that case at page 309 of 232 Ind., 111 N.E.2d 459, 'Each case must be determined on its own merits." (238 Ind. at 63, 148 N.E.2d at 566--567)

Thus, a constitutional issue can be preserved where a party petitions for a variance if he presents evidence to the Board which frames such constitutional issue.

In the instant case the petitioner alleges that the ordinance in question, as it applies to his particular property is violative of sections 21 and 23 of Article I of the Indiana Constitution and the 14th and 15th Amendments of the United States Constitution. In presenting its case before the Board the appellee submitted the following evidence: That the area was zoned more than 50 years ago as a residential area and as such is incapable of use today; that due to the order of the Marion County Health and Hospital Corporation it was necessary to tear down the improvements contained on the property; that College Avenue, on which the property sits is a main arterial street; that other variances have been granted in the same district; that the aforementioned results in no incentive to build single residential structures; that it cannot sell the property at a reasonable price. This evidence presented the constitutional question to the Board.

Appellant contends that the evidence shows that the zoning ordinance constitutes a reasonable exercise of the police power and that it is not unconstitutional as applied to the subject property.

Two warranty deeds contained in the record show that Corporation 15 obtained the land in question in 1964 and conveyed it to the appellee Gateway Corporation in 1965. The order of the Marion County Health and Hospital Corporation regarding the repairs was issued in April of 1966. From these facts appellant claims that the appellee allowed the improvements on the property to fall into a state of disrepair and thus, there is a self-created hardship. However, appellee contends that it would not be economically feasible to make the repairs needed due to the rent received. As stated, John Hart testified that the taxes and maintenance exceeded the gross income from the property torn down.

To support its position appellant cites Board of Zoning Appeals, etc. v. Waskelo et al. (1960), 240 Ind. 594, 168 N.E.2d 72. In that case the property owner purchased a house on a lot which was 100 feet wide. Subsequently, the property owner sold the house and 56 feet of the land, thereby retaining only 44 feet for himself. He purchased and reconveyed the land with knowledge of a pre-existing zoning ordinance which required a minimum lot width of 50 feet for single-family dwellings. This Court stated:

'Appellants assert that appellees' 'hardship,' if any, is 'not the result of or induced by the application' of the zoning ordinance to their property, but was created by their own act.

'The rule applicable here is stated in 58 Am.Jur., Zoning, § 208, p. 1053, as follows:

"Ordinarily, a claim of unnecessary hardship cannot be based upon conditions created by the owner or applicant." (240 Ind. at 597, 168 N.E.2d at 73.)

The Waskel...