Metropolitan Development Com'n of Marion County v. Villages, Inc.

• Decision Date: 13 June 1984
• Docket Number: No. 2-783A256,2-783A256
• Parties: The METROPOLITAN DEVELOPMENT COMMISSION OF MARION COUNTY, Appellant (Plaintiff Below), v. The VILLAGES, INC., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 367

464 N.E.2d 367

The METROPOLITAN DEVELOPMENT COMMISSION OF MARION COUNTY, Appellant (Plaintiff Below), v. The VILLAGES, INC., Appellee (Defendant Below).

No. 2-783A256.

Court of Appeals of Indiana,

Third District.

June 13, 1984.

Larry F. Whitham, Asst. Corp. Counsel, Indianapolis, for appellant.

Curtis S. Travis, Hendrickson, Travis, Pantzer & Miller, Indianapolis, for amicus curiae.

Wilson S. Stober, Norman G. Tabler, Jr., Harry F. McNaught, Jr., Baker & Daniels, Indianapolis, for appellee.

HOFFMAN, Judge.

The Metropolitan Development Commission of Marion County filed suit against The Villages, Inc., to enforce its zoning ordinance and enjoin use of a single-family residence as a "foster care facility." The trial court denied the Commission's application for preliminary injunction and granted The Villages' request for judgment on the merits. The Commission appeals that decision.

On January 10, 1983, The Villages purchased a single-family residence at 6135 N. Meridian Street in Indianapolis for use as a group home. The group home concept is relatively new, and serves the purpose of placing abused, abandoned, and neglected children in a simulated family environment. The Villages proposes to hire a married couple to act as foster parents for up to ten foster children. Children will be placed in the group home under separate contracts by the courts or government agencies. For each child cared for, The Villages will be reimbursed at the rate of $36 per day.

The property in question is zoned D-3 under the Dwelling Districts Zoning Ordinance (DDZO) of Marion County, which permits the following uses:

"1. ONE-FAMILY DWELLING, including Manufactured Homes as regulated in section 2.175.

2. TWO-FAMILY DWELLING, (permitted on corner lots only).

3. GROUP HOMES, as regulated in section 2.18. ¹

4. TEMPORARY USES, as regulated in section 2.14.

5. ACCESSORY USES, as regulated in section 2.15.

6. HOME OCCUPATIONS, as regulated in section 2.16."

The DDZO specifically permits foster family care of children unrelated to residents by blood or adoption as an Accessory Use, under the following conditions:

"Accessory Uses:

a. Shall be customarily incidental accessory and subordinate to, and commonly associated with, the operation of the primary use of the lot.

b. Shall be operated and maintained under the same ownership and on the same lot as the primary use.

c. Shall be subordinate in area, extent, and purpose to the primary use of building served...."

In its findings of fact and conclusions of law, the trial court specifically recognized the group home as a one-family dwelling, entitled to operate in the D-3 district as a matter of law. The Commission now maintains that the proposed group home does not constitute a one-family dwelling under the provisions of the DDZO.

Local governments may reasonably restrict the use of land into districts for the promotion of public health, safety, morals, and welfare. Euclid v. Ambler Realty Co., (1926) 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. The police power of local legislative bodies may be properly used to limit the number of non-related persons inhabiting homes in residential districts without violating constitutional rights. Village of Belle Terre v. Boraas, (1974) 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797; see also, Moore v. Cleveland, (1977) 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531. Thus, the issue at bar is not constitutional in nature, but instead involves a question of statutory interpretation.

The construction of a zoning ordinance, like other statutes, is a question of law. 101A C.J.S. Zoning and Land Planning Sec. 101. Courts may not interpret a statute or ordinance which is plain and unambiguous on its face. Boone County State Bank v. Andrews, (1983) Ind.App., 446 N.E.2d 618. Where an ambiguity does arise, the zoning ordinance involved must be construed to ascertain and effectuate the intent of the local legislative body. Bd. of Zoning v. New Testament Bible Church, (1980) Ind.App., 411 N.E.2d 681.

The term "family" is not defined in the DDZO. Normally, terms undefined within a statute must be given their plain, ordinary and usual meaning. Sutto v. Board of Medical Regis. and Examination, (1962) 242 Ind. 556, 180 N.E.2d 533. However, the word family has no less than twelve dictionary definitions and is not commonly associated with one plain or ordinary meaning. See, Webster's New Universal Unabridged Dictionary, Second Edition (1983).

In this instance, the legislative intent may be ascertained through intrinsic construction of the DDZO. Words and phrases in a single section of a statute or ordinance must be construed consistently and logically with other sections of the same act and with the act as a whole. Ind. State Highway Comm. v. White, (1973) 259 Ind. 690, 291 N.E.2d 550.

In this case, the legal maxim expressio unius est exclusio alterius ² is particularly useful in ascertaining the legislative intent. In construing a statute, it is equally important to recognize what is not said as it is to recognize what is said. Van Orman v. State, (1981) Ind.App., 416 N.E.2d 1301. In drafting the DDZO, the local legislative body promulgated separate and specific provisions for single-family dwellings and for foster care within the D-3 district. The specific provision for foster care as an accessory use necessarily excludes foster care from the general section authorizing single-family dwellings. Any other construction renders this specific regulation of foster care superfluous. Local legislators would not logically provide for foster care as an accessory use if it were also contemplated as a single-family dwelling use. The trial court erred as a matter of law in finding The Villages' group home to be a single-family dwelling.

Nor does the group home qualify as an accessory use. Any accessory use must be subordinate in area, extent, and purpose to the primary use of the lot. The Villages is a corporation which intends to hire two houseparents to provide care for ten foster children. These children are placed in the group home under separate contracts, and The Villages is compensated at a rate of $36 per day per child. Obviously, foster care is not subordinate to, but actually is the primary use of the proposed group home. As such, the proposed group home is not permitted as an accessory use, nor is it allowed under any category within the D-3 district. ³

The Villages contends that its position is supported by the weight of authority in other jurisdictions which have considered this question. Instead of addressing the specific terms of the challenged ordinance, this position relies upon the results reached in cases construing distinctly different ordinances. It is the duty of this Court to interpret the challenged ordinance, giving force and effect to the language of the local legislature, without regard to results reached in cases which may be clearly contrasted.

A majority of the cases cited may be distinguished on the basis that the ordinances concerned broadly define family to encompass unrelated individuals operating as a single-housekeeping unit. E.g., Saunders v. Clark Cty. Zoning Dept., (1981) 66 Ohio St.2d 259, 421 N.E.2d 152. See also, Annot., 71 A.L.R.3d 697 (1976). Other cases have recognized that group homes are entitled to locate in residential areas where state statute pre-empts local government from excluding this use. Costley v. Caromin House, Inc., (1981) Minn., 313 N.W.2d 21; Hessling v. Broomfield, (1977) 193 Colo. 124, 563 P.2d 12. At least one jurisdiction has recognized group homes for foster children as a single-family use per se, regardless of zoning prohibitions. Group House of Port Washington v. Board of Zoning, (1978) 45 N.Y.2d 266, 408 N.Y.S.2d 377, 380 N.E.2d 207; White Plains v. Ferraioli, (1974) 34 N.Y.2d 300, 357 N.Y.S.2d 449, 313 N.E.2d 756. The New York cases clearly establish a right which exceeds the constitutional requirements set forth in Belle Terre, supra, and Moore, supra. It is not the duty of this Court to grant extra-constitutional rights and privileges. Instead, the power to enact social legislation rests exclusively in the hands of the General Assembly or with local legislative bodies.

While the above-cited cases are distinguishable from this case, the Supreme Court of Ohio has handed down a well-reasoned opinion. Carroll v. Washington Twp. Zoning Com'n, (1980) 63 Ohio St.2d 249, 17 Ohio Op.3d 161, 408 N.E.2d 191. The Carroll court held that a group home operated principally for the care of foster children did not qualify as a single-family dwelling even where the ordinance failed to define or restrict the term family. In reaching this conclusion, the court stated that:

[t]he term 'family,' when used without definition in a residential use restriction, must be interpreted in light of permissible zoning objectives. A political subdivision may legitimately segregate land uses in order to, inter alia, provide adequate fire and police protection, decrease noise and noxious odors, control traffic flow, limit land use intensity, and create reasonably secure and stable residential neighborhoods. The attainment of '[a] quiet place where yards are wide, people few, and motor vehicles restricted ...' is a reasonable goal of land use legislation. Village of Belle Terre v. Boraas (1974), 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797.

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"Local governments may, through the passage of zoning-type legislation, reasonably restrict the use of land into districts with the aim of promoting the public health, safety, morals and welfare. There is no constitutional prohibition in denying certain uses of one's property in a comprehensive plan for the development of communities for the common welfare of the community. Euclid v. Ambler Realty Co., supra. A comprehensive township zoning plan which excludes a use of this type is not per se unconstitutional.

"The exercise of local discretion in areas of...