Metropolitan Development Commission of Marion County v. Camplin, 272A67

Citation153 Ind.App. 622,288 N.E.2d 569
Decision Date06 November 1972
Docket NumberNo. 272A67,272A67
PartiesThe METROPOLITAN DEVELOPMENT COMMISSION of MARION COUNTY et al., Plaintiffs-Appellants, and Sheridan Heights Civic League and Maple Heights Devington Association, Defendants-Appellants, v. James E. and Anne T. CAMPLIN, Husband and Wife, Metropolitan Board of Zoning Appeals of Marion County, Division Three, Defendants-Appellees.
CourtIndiana Appellate Court

David F. Rees, Dale B. McLaughlin, Indianapolis, for appellants.

Bulen & Castor, Terrence, P. Pehler, Indianapolis, for appellees.

SULLIVAN, Judge.

The Metropolitan Board of Zoning Appeals of Marion County (hereinafter referred to as Board) granted the appellees, James E. and Anne T. Camplin, a variance authorizing the use of certain property at 4401 North Arlington Avenue in Indianapolis for a 'convenience shopping center', i.e., a cleaning establishment and grocery store. Appellants, the Metropolitan Development Commission of Marion County (hereinafter referred to as Commission) and the Department of Metropolitan Development of the City of Indianapolis (hereinafter referred to as Department) sought judicial review by writ of certiorari in the Superior Court of Marion County, Room 7. That court upon review affirmed the decision of the Board.

Certain remonstrators, the Sheridan Heights Civic League and the Maple Heights Devington Association, though not parties to the Petition for Certiorari, joined with appellants in a Motion to Correct Errors which was overruled.

The property in question is located in a residential subdivision and is zoned for agricultural or low-density residential use. Camplin had previously petitioned the Board for variances to construct a business building on the property in 1961 and 1964 but both petitions had been denied.

Three issues are presented by this appeal. First, appellees (Camplins) contend that the trial court lacked jurisdiction of the Certiorari proceeding because the Commission and Department, the plaintiffs below, did not have standing to seek review. Camplins argue in this regard that neither the Commission nor the Department are 'aggrieved persons' within the meaning of the controlling statute.

Next, appellants insist that the doctrine of res judicata required denial of the variance in that Camplins made no showing that circumstances had changed since the time of a previous variance denial for the property in question.

Finally, appellants maintain that Camplins failed to establish all statutory prerequisites for the granting of a variance. They argue that the evidence presented on three of the five requirements was so meager and devoid of probative value as to be legally insufficient.

OBJECTION TO STANDING OF COMMISSION AND DEPARTMENT TO APPEAL WAS WAIVED

The standing of a party to appeal a decision of the Board is determined by the following statute:

'Subject to the above limitations, any person aggrieved by a decision of the board of zoning appeals, not including the executive director, may present to the circuit or superior court of the county in which the premises affected are located a petition duly verified, setting forth that such decision is illegal in whole or in part, and specifying the grounds of the illegality.' I.C.1971, 18--7--2--76, Ind.Ann.Stat. § 53--974 (Burns 1972 Supp.)

The petition for writ of certiorari here was filed in Superior Court by the Commission and the Department on March 25, 1970. This court in a decision handed down February 3, 1972 ruled that neither the Commission nor the Department is an aggrieved person within the meaning of the statute. Metropolitan Dev. Com'n. of Marion Co. v. Cullison (1972), Ind.App., 277 N.E.2d 905. However, an objection to the right of a party to bring a suit must be raised at the first opportunity or the objection is waived. J. I. Case Co. v. Sandefur (1964), 245 Ind. 213, 197 N.E.2d 519. Camplins' objection to appellant's standing was not raised during the certiorari proceeding below nor in the Motion to Correct Errors. The alleged error, if any, has therefore been waived. Accordingly, we do not consider possible retroactive application of Cullison even though such application was argued in Camplins' brief.

DEFENSE OF RES JUDICATA NOT TIMELY PRESENTED AND IS WAIVED

Appellants citing Braughton v. Metropolitan Board of Zoning Appeals (1970), Ind.App., 257 N.E.2d 839, maintain that the doctrine of res judicata required the Board to deny the requested variance since a zoning board should not indiscriminately or repeatedly reconsider a determination denying a variance unless there has been a change of conditions or circumstances. They predicate their position upon the fact that two prior variance petitions, the last one in 1965, were denied. This argument is unavailing, however, because the defense of res judicata was not presented before the Board, nor was it even asserted by appellants in their Petition for Writ of Certiorari addressed to the reviewing court below. The defense was therefore waived and cannot serve here as a cause for reversal. Board of Zoning Appeals v. Sink (1972), Ind.App., 285 N.E.2d 655.

EVIDENCE WAS SUFFICIENT TO SUSTAIN GRANTING OF THE VARIANCE

The Board is statutorily permitted to grant a variance from a zoning ordinance if the following determinations set forth in I.C. 1971, 18--7--2--71, Ind.Ann.Stat. § 53--969 (Burns 1972 Supp.) are made:

'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 . . .'

All of the above requirements must be met before a variance may be granted. Marion County Board of Zoning Appeals v. Sheffer & Clark, Inc. (1966), 139 Ind.App. 451, 455, 209 N.E.2d 522, 220 N.E.2d 543. Appellants insist that the decision of the Board is not supported by sufficient evidence to sustain the first, second and fifth requirements and for that reason the variance should not have been granted.

In order to reverse an order of a board which grants a variance, an appellant must show that the quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding and decision...

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9 cases
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    • United States
    • Indiana Appellate Court
    • October 25, 1979
    ... ... filing a writ of certiorari in the Allen County Circuit Court. Pursuant to the court's issuance ... Commission's approval of the Lakewood development plan was supported by substantial evidence of ... 272, 292 N.E.2d 274, 277; Metropolitan Dev. Com'n of Marion Cty. v. Camplin (1972), ... ...
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    ... ... See, Metro. Dev. Com'n. of Marion Cty. v. Camplin (1972), Ind.App., 288 N.E.2d 569; Metro. Dev. Com'n. of Marion Cty. v ... ...
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    • June 15, 1981
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    • Indiana Appellate Court
    • December 7, 1993
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