Metropolitan Development Commission of Marion County v. Marianos, 980S361

• Decision Date: 03 September 1980
• Docket Number: No. 980S361,980S361
• Citation: 408 N.E.2d 1267,274 Ind. 67
• Parties: The METROPOLITAN DEVELOPMENT COMM. OF MARION COUNTY, Appellant, v. George MARIANOS d/b/a George's Garage, Appellee.
• Court: Indiana Supreme Court

Page 1267

408 N.E.2d 1267

274 Ind. 67

The METROPOLITAN DEVELOPMENT COMM. OF MARION COUNTY, Appellant, v. George MARIANOS d/b/a George's Garage, Appellee.

No. 980S361.

Supreme Court of Indiana.

Sept. 3, 1980.

Larry F. Whithan, Corp. Counsel, Indianapolis, for appellant.

John D. Raikos, Indianapolis, for appellee.

PIVARNIK, Justice.

This cause comes to us on petition to transfer following a decision by the Second District Court of Appeals which reversed the judgment of the trial court. The Metropolitan Development Commission of Marion County (MDC) appealed from the trial court's denial of its prayer for injunctive relief against certain commercial uses of industrial zoned property leased by George Marianos, doing business as George's Garage. The MDC is a governmental entity created by Chapter 173 of the Acts of the Indiana General Assembly for the year 1969, and exercises all powers previously conferred upon the Metropolitan Plan Commission of Marion County by the Indiana General Assembly. Since 1963, the property in question has been zoned I-4-U under the industrial zoning ordinance of Marion County. The I-4-U district is an industrially zoned district which allows for certain enumerated less intensive uses. However, the I-4-U district does not permit gasoline stations, automobile repair garages or automobile salvage operations. The use of the property in question as a gasoline service station and repair garage apparently began about 1940. When the gasoline supplier for the station ceased doing business in Indiana, the primary business on the property became automobile salvage and automobile repair. Appellee Marianos was in touch with other gasoline suppliers in an attempt to resurrect the gasoline business that had decreased measurably with the absence of Gulf Corporation, but had trouble making such arrangements because of the shortage of gasoline.

Marianos did not dispute his non-compliance with the ordinance. He asserted the affirmative defense of a non-conforming use. The trial court found there was a non-conforming use and denied the MDC injunctive relief. The Court of Appeals found the trial court made insufficient findings to support its decision and reversed and remanded the cause to the trial court with instructions to enter judgment for the Metropolitan Development Commission.

While it is true that the findings of fact of the trial court fall short of supporting the conclusion that the defendant has a valid non-conforming use, the record itself reveals that there was testimony before the trial court from which at least strong inferences could be drawn that there was, in fact, a non-conforming use that would support a judgment for Marianos. We accordingly grant transfer and order that the opinion and judgment of the Court of Appeals be vacated.

The trial court made the following findings of fact:

1. The Metropolitan Development Commission of Marion County, Indiana, is a governmental entity created by Chapter 173 of the Acts of the Indiana General Assembly for 1955, as amended.

2. The Defendant, George Marianos, is presently doing business as George's Garage upon the following described real estate commonly referred to as 748 Kentucky Avenue, Indianapolis, Indiana:

Part of Out Lots 130 and 132 of the Donation Lands of the City of Indianapolis, specifically; Beginning at the intersection of the Northwest line of Kentucky Avenue and the south line of Oliver Street, west on and along the south line of Oliver Street 162.64 feet, thence south 191.97 feet to a point on the northwest line of Kentucky Avenue, thence northeast on and along the northwest line of Kentucky Avenue 236.17 feet to the point of beginning.

3. Said real estate is owned by Frank's Brake Service, Inc., an Indiana Corporation, not a party to these proceedings.

4. The Defendant occupied said premises prior to 1969, and conducted operations which he has continued to conduct to this day, including repairs of motor vehicles, storage and overhauling of cars.

5. Said real estate is zoned I-4-U by the Industrial Zoning Ordinance of Marion County, Indiana.

6. The Defendant conducts his garage business upon said premises and makes his livelihood on a full-time basis working seven days a week.

7. Defendant has operated his business prior to the passage of the Act which created the Plaintiff.

8. To enjoin Defendant from conducting his operations upon said premises would deprive Defendant of a livelihood and would deny Defendant the rights guaranteed him by the Indiana and Federal Constitutions.

9. Across the street from the subject real estate is Hetherington & Berner, an empty building formerly a foundry.

10. Across the street and not far from the subject real estate is an empty building, formerly an abbatoir used by Stark & Wetzel in the killing of livestock.

11. Within two blocks of the property is Diamond Chain, a heavy industrial factory.

12. Within three blocks of the property Indianapolis Power and Light Company maintains a large power generating plant.

13. There has always been a junk yard within four blocks of the property.

A non-conforming use is one that is permitted in a given area, despite being against zoning regulations, because the non-conforming use was in existence on or before the controlling zoning ordinance took effect. The non-conforming use must exist as such continuously after the effective date of the ordinance. See generally Jacobs v. Mishawaka Bd. of Zoning Appeals, (1979) Ind.App., 395 N.E.2d 834.

The critical year for determining whether there was a non-conforming use in this case is 1963. Thus, if a certain use was being made of the property in 1963, and it had been continuously used in that manner since, then it might be a continuing valid non-conforming use. The appellee garage owner in this case leased the property in 1969. The Court of Appeals pointed out that nowhere was a finding made that appellee or his predecessors had used the property in a valid non-conforming way in 1963 and up until the time that appellee himself began using the property in this manner. It appears the trial court may have believed it was sufficient to show the non-conforming use from the year 1969, when the MDC came into operation under the law. The Court of Appeals correctly determined that the ordinance was effective November 7, 1963, and, therefore, that date, and not 1969, would have to be used to establish a non-conforming use.

Appellee Marianos testified as follows:

"Q. How long has a garage or filling station been on this present site that the City is complaining about?

A. I would say it was in the 40's when it was first there. I wasn't there then, but I use to go over there and use the man's grease rack.

Q. Is...