Metropolitan Bd. of Zoning Appeals, Div. II, Marion County v. Gunn

• Decision Date: 23 April 1985
• Docket Number: No. 2-583A157,2-583A157
• Citation: 477 N.E.2d 289
• Parties: The METROPOLITAN BOARD OF ZONING APPEALS, DIVISION II, MARION COUNTY, Indiana, Consisting of: Robert Hayes, Chairman, Fred Imhausen, Member, Mrs. Hank Chafee, Member, John Fuller, Member, Michael D. McGinley, Member, Loren Richard Hudson, Mary Ann Hudson, and Noble Centers, Operated by Marion County Association for Retarded Citizens, Appellants (Respondents Below), v. Barbara GUNN, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 289

477 N.E.2d 289

The METROPOLITAN BOARD OF ZONING APPEALS, DIVISION II MARION COUNTY, Indiana, Consisting of: Robert Hayes Chairman, Fred Imhausen, Member, Mrs. Hank Chafee, Member John Fuller, Member, Michael D. McGinley, Member, Loren Richard Hudson, Mary Ann Hudson, and Noble Centers, Operated by Marion County Association for Retarded Citizens Appellants (Respondents Below), v. Barbara GUNN, Appellee (Petitioner Below).

No. 2-583A157.

Court of Appeals of Indiana, Fourth District.

April 23, 1985.

David F. Rees, City-County Legal Div., Ben J. Weaver, Thomas N. Olvey, Johnson & Weaver, Indianapolis, for appellants.

Ted B. Lewis, Donn H. Wray, Christine F. Royce, Stewart Irwin Gilliom Fuller & Meyer, Indianapolis, for appellee.

MILLER, Presiding Judge.

Barbara Gunn petitioned for writ of certiorari from an order issued by the Metropolitan Board of Zoning Appeals (Board), granting a special exception for the establishment of a group home for developmentally disabled adults next-door to Gunn's home. The trial court reversed the Board's order after having concluded the Board had improperly circumvented the requirement for prior approval by the Meridian Street Preservation Commission, its findings were insufficient, and its order was contrary to law. After considering the Board's arguments in opposition to the court's judgment and Gunn's counter-arguments in support thereof, we must find the trial court erred and do reinstate the Board's order. Reversed.

ISSUES

The issues we address here for purposes of reversal, ¹ as distilled from the parties' briefs, are:

1) Whether the Board's action in granting a special exception for a group home for developmentally disabled adults in 2) Whether the Board's basic findings of fact in support of said special exception are insufficient to sustain its ultimate findings. ²

the Meridian Street preservation area was in contravention of legislation for the preservation of historic street areas (IND.CODE 18-4-24-1 et seq. (1976) (now at IND.CODE 14-3-3.2-1 et seq.) );

FACTS

On January 11, 1982, Loren and Mary Ann Hudson filed a petition before the Board for a special exception for 4579 North Illinois Street, Indianapolis, (located in the Meridian Street preservation area) in order to use the property for a group home of no more than eight developmentally disabled adults. Shortly thereafter, a like petition with its filing fee was returned to the Hudsons' counsel by the Meridian Street Preservation Commission (Commission) because it was the Commission's opinion such exception was prohibited by the historic preservation act, specifically I.C. 18-4-24-19, regarding the habitation of single-family dwellings in the Meridian Street preservation area. However, after hearing evidence, the Board, on April 20, granted the Hudsons a group home special exception with the following findings and conclusions:

"FINDINGS OF FACT

1. THE GRANT OF THE SPECIAL EXCEPTION WILL NOT BE INJURIOUS TO THE PUBLIC HEALTH, SAFETY, MORALS, CONVENIENCE OR GENERAL WELFARE because:

The intended residents of the proposed group home are in no way injurious as aforesaid, and the use of the subject real estate by said residents will be consistent with the residential character of the neighborhood.

2. THE GRANT OF THE SPECIAL EXCEPTION WILL NOT INJURE OR ADVERSELY AFFECT THE ADJACENT AREA OR PROPERTY VALUES THEREIN because:

There will be no externally discernible change from the present appearance or use of the subject real estate, and it will remain essentially a residential use.

3. THE GROUP HOME WILL BE IN HARMONY WITH THE CHARACTER OF THE DISTRICT AND LAND USE AUTHORIZED THEREIN because:

The use of the subject real estate will remain residential, and there will be no deviation from the residential character of the neighborhood which would be incompatible or inconsistent with surrounding land use.

4. THE SUBJECT REAL ESTATE IS NOT LOCATED WITHIN THREE THOUSAND (3,000) FEET, FROM BUILDING LOT LINE TO BUILDING LOT LINE, OF ANOTHER GROUP HOME FOR DEVELOPMENTALLY DISABLED PERSONS because:

No other group home for developmentally disabled persons exists in this area, and the nearest group home to the subject real estate is well beyond three thousand (3,000) feet from the building lot line of the subject real estate.

5. THE GROUP HOME WILL BE LICENSED BY THE DEVELOPMENTAL DISABILITIES RESIDENTIAL FACILITIES COUNCIL AND WILL COMPLY WITH ANY AND ALL APPLICABLE

REQUIREMENTS OF THE STATE FIRE MARSHAL, IN ACCORDANCE WITH INDIANA LAW, PRIOR TO THE OCCUPANCY AND OPERATION OF THE GROUP HOME.

6. THE GROUP HOME CONTAINS AT LEAST TWO HUNDRED (200) SQUARE FEET OF HABITABLE FLOOR AREA FOR EACH RESIDENT because:

There is a total of 3746 square feet of habitable floor area, and the maximum number of full-time residents is nine (9).

7. THE PLAN OF OPERATION OF THE GROUP HOME IS RESIDENTIAL IN NATURE because:

The Plan of Operation, filed herein, demonstrates that the activities and functions performed by the intended residents are consistent and compatible with residential use and the residential character of the surrounding area.

DECISION

IT IS THEREFORE the decision of the Board that GROUP HOME SPECIAL EXCEPTION 82 SE2-4 is hereby granted, subject to any conditions stated in the minutes of this Board (which conditions are incorporated herein by reference and made a part of this decision)."

Record, pp. 114-15.

One month later on May 19, Gunn, a resident at 4577 North Illinois Street, petitioned the Marion Superior Court for a writ of certiorari to review the Board's decision. After hearing arguments of counsel, the court reversed the Board's action on the following pertinent findings and conclusions:

"FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT ENTRY

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2. The Respondents, Loren Richard Hudson, Mary Ann Hudson and Noble Centers, were the petitioners in Case No. 82 SE2-4 before the Board wherein said Respondents requested approval under City-County General Ordinance No. 41,1981, Docket No. 81-AO-2 to use the real estate commonly known as 4579 North Illinois Street, Indianapolis, Indiana, as a Group Home for developmentally disabled persons.

3. The real estate commonly known as 4579 North Illinois Street, Indianapolis, Indiana, which is the subject matter of Case Number 82 SE2-4, is more particularly described as follows:

[LEGAL DESCRIPTIONS]

4. The Petitioner, as the adjoining landowner of real estate commonly known as 4577 North Illinois Street, Indianapolis, Indiana, is aggrieved in a personal and a pecuniary way by the Board's decision in Case Number 82 SE2-4 which granted Respondents' petition and which decision was entered, pursuant to the Board's adopted findings of fact, on April 20, 1982.

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6. The real estate in question is located in the Meridian Street Preservation District, which was created by Acts 1979, Public Law 260 of the Indiana Legislature, entitled 'An Act to Amend the Indiana Code of 1971, 18-4, by adding a new chapter concerning preservation of historically and architecturally significant areas and streets in cities and towns.' At the time the Request for a Special Exception was filed with the Metropolitan Board of Zoning Appeals, said Act was codified as Sections 18-4-24-1 et seq. of the Indiana Code, 1971.

7. Loren Richard Hudson and Mary Ann Hudson filed a petition with the Meridian Street Preservation Commission for approval of the request for special exception, pursuant to Sec. 18-4-24-13 of the Indiana Code, 1971, which was denied by the Commission on January 19, 1982.

8. Loren Richard Hudson and Mary Ann Hudson did not seek review of the

Commission's decision by writ of certiorari pursuant to Sec. 18-4-24-21 of the Indiana Code, 1971.

9. The Meridian Street Preservation District consists entirely of residential dwelling districts, including schools and churches on land designated not as different zoning classifications, but as special uses.

10. All of the dwellings in the Meridian Street Preservation District are single-family dwellings.

11. In 1971, when the act creating the Meridian Street Preservation District was enacted, there were no special exceptions in existence in the Marion County Dwelling District Ordinance.

12. The Petition for a Special Exception stated that the proposed Group Home would be occupied by eight (8) developmentally disabled individuals, plus a non-resident staff person.

CONCLUSIONS OF LAW

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3. The ordinance under which the petition for special exception was filed is City-County General Ordinance Number 41,1981, Docket Number 81-AO-2, which sets forth seven (7) standards, all of which must be satisfied prior to the granting of a special exception....

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4. Section 18-4-24-13(a) of the Indiana Code, 1971, provides that no zoning variances or petition for the amendment or adoption of any zoning ordinance pertaining or applying to any Meridian Street property or bordering property shall be granted, adopted or amended without the prior approval of the Meridian Street Preservation Commission.

5. Section 18-4-24-21 of the Indiana Code, 1971, provides for the review of every final determination of the Meridian Street Preservation Commission by filing a verified petition for writ of certiorari with the Circuit or Superior Court of Marion County within sixty (60) days after the date of final determination.

6. Although the Board has jurisdiction to hear requests for variances and special exceptions, the requirement imposed by Sec. 18-4-24-13(a) makes the prior approval of the Meridian Street Preservation Commission, or a favorable determination on review pursuant to Sec. 18-4-24-21, a jurisdictional condition precedent to the exercise of the Board's jurisdiction and to the granting of any such request.

7. Section 18-24-19 of the Indiana Code, 1971, requires that single-family dwellings within the Meridian Street Preservation District are to be occupied by no more than one family, and defines a...