Metropolitan School Dist. of Washington Tp., Marion County v. Jansen
| Decision Date | 24 October 1973 |
| Docket Number | No. 2--572A11,2--572A11 |
| Citation | 158 Ind.App. 234,302 N.E.2d 541 |
| Parties | The METROPOLITAN SCHOOL DISTRICT OF WASHINGTON TOWNSHIP, MARION COUNTY, Indiana, et al., Appellants, v. John G. JANSEN et al., Appellees. |
| Court | Indiana Appellate Court |
Ben J. Weaver, Charles G. Reeder, Indianapolis, for Metropolitan School Dist. of Washington Tp., Marion County.
David F. Rees, Indianapolis, for the Metropolitan Development Comm. of Marion County and Dept. of Metropolitan Development of City of Indianapolis, by its Div. of Planning and Zoning.
Bulen & Castor, Henry Y. Dein, Indianapolis, for appellees.
The Metropolitan Board of Zoning Appeals of Marion County, Division One (the Board) granted the appellees John G. Jansen and Anna Lou Jansen (the Jansens) a use variance for the purpose of constructing a convenience shopping center on premises located at 4310 East 62nd Street in Marion County. The Metropolitan School District of Washington Township, remonstrator before the Board, along with the Metropolitan Development Commission of Marion County and The Department of Metropolitan Development of the City of Indianapolis (appellants) sought judicial review of the grant by writ of certiorari in the Circuit Court of Marion County. Upon review, that court upheld the decision of the Board. We affirm.
The issue before us is whether the trial court erred in finding that there was substantial evidence of probative value before the Board to establish the Board's findings. Those findings were affirmations of the five determinants which the statute requires to be found before a use variance can be granted, plus specific facts supporting the ultimate determinations. 1
Appellants' argument concerning the findings that (1) the grant will not be injurious to the public health, etc., and (2) the use or value of the adjacent area will not be affected in a substantially adverse manner focuses on the shopping center's effect on an already existing traffic problem. They contend that the evidence before the Board took into consideration only 'adjoining' property and not the burden which would be imposed upon the 'adjacent' school, the entrance to which is located across the street and some 75 feet from the proposed entrance to the shopping center. Consequently, it is contended, the Board did not take into account the safety and general welfare of the students, nor the resulting adverse effect the added traffic would have on the use of the school's property.
The effect of appellants' argument is to say that the evidence they submitted in opposition to the petition is more substantial than that evidence in support of the petition. This court, however, may not weigh the evidence submitted to the Board nor substitute its judgment for that of the Board. Our review is limited to whether there is any substantial evidence of probative value which is competent as the foundation for the decision of the Board. Suess v. Vogelgesang (1972), Ind.App., 281 N.E.2d 536, 30 Ind.Dec. 385; Vogelgesang v. Shackelford (1970), 146 Ind.App. 248, 254 N.E.2d 205, 20 Ind.Dec. 50.
We find that the record does contain substantial evidence of probative value which sustains those first two findings. The testimony of Mr. Kothe, a realtor, elicited by the appellant on cross-examination, shows that he had considered the effect of the traffic increase on the school and, that in his opinion, while any use of the now vacant property would affect the school, the proposed convenience shopping center would not have as detrimental an effect on the traffic as would an apartment complex. We further note that at the conclusion of the testimony, comments made by the Board members conditioned the granting of the variance upon the addition of a sidewalk along the frontage of the property and a modification of the proposed means of ingress and egress to the...
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Bowman v. Metropolitan Bd. of Zoning Appeals of Marion County, Division III
...Findings One, Three and Four for the granting of the variance. This case is reminiscent of Metropolitan School District of Washington Township v. Jansen (1973), Ind.App., 302 N.E.2d 541, decided by this court in October of 1973, wherein we 'The effect of appellants' argument is to say that ......
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...features of the property, such as unusual shape or relatively small acreage, see Metro. Sch. Dist. of Washington Twp., Marion Cnty. v. Janssen, 158 Ind.App. 234, 302 N.E.2d 541 (Ind.Ct.App.1973) (when viewed in conjunction with the adjoining commercial use and railroad tracks, unusual shape......
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Sam's East Inc v. United Energy Corp. Inc
...land in the area was of a residential or agricultural use with high quality homes); Metro. Sch. Dist. of Washington Twp., Marion County v. Jansen, 158 Ind.App. 234, 236-37, 302 N.E.2d 541, 543 (1973) (concluding the Board was justified in finding the need for the variance arose from some co......