Nelson v. Board of Zoning Appeals of City of Indianapolis, 18997
| Decision Date | 23 April 1959 |
| Docket Number | No. 18997,18997 |
| Citation | 158 N.E.2d 167 |
| Parties | Earl NELSON, Hallie Nelson, J. Martin Antrim, Effie B. Antrim, L. M. Thomas, M. L. Thomas, Anthony J. Wichman, D. Wichman, Roland J. Stahley, Minnie Zimmerman, M. C. Presnall, Lena B. Peters and Ivan Smith, Appellants, v. BOARD OF ZONING APPEALS OF CITY OF INDIANAPOLIS, Irving R. Rutkin and Joseph W. Selvage, Appellees. * |
| Court | Indiana Appellate Court |
Leo X. Smith, John F. Watkins, Indianapolis, for appellants.
Yaeger & Tinder, Miller & Miller, Indianapolis, John G. Tinder and Stanley B. Miller, Indianapolis, of counsel, for other appellees.
Charles S. White, Stanley Talesnick, Asst. City Attys., Indianapolis, for Board of Zoning Appeals.
This is an appeal from a judgment rendered by the Superior Court, Room 2, of Marion County, in an action brought by appellants for a writ of certiorari to review a decision of the Board of Zoning Appeals of the City of Indianapolis. The Board, on April 13, 1956, granted a variance from the zoning ordinances of the city to authorize the construction of a 16-family unit apartment house in an area restricted by the zoning ordinances to one and two-family dwelling houses and designated as a 'Ul' or dwelling-house district.
Appellants owned real estate adjacent to and in the vicinity of the lot on which the variance was granted. They filed a remonstrance with the Board of Zoning Appeals and were subsequent petitioners in the action for a writ of certiorari in the Superior Court.
Appellees are the Board of Zoning Appeals, the petitioner, Dr. Irving R. Rutkin, and Joseph W. Selvage, the owner of the property which the variance affected.
In the Superior Court the issues were drawn by appellants' petition for a writ of certiorari, appellees' answer thereto, and the return of such writ filed by the Board of Zoning Appeals. After a hearing, the court affirmed the decision of the Board, thus approving the variance, and entered judgment accordingly.
Appellants filed their motion for a new trial on the grounds that (1) the decision of the court was not sustained by sufficient evidence and (2) the decision of the court was contrary to law. The motion was overruled and this appeal followed.
Appellees charge that appellants have violated Supreme Court Rule 2-17(e), in that appellants have not properly stated the basis of the ruling complained of after each assignment of error relied upon, and after each cause for new trial relied upon, in that part of their brief entitled 'Argument.' Accordingly, appellees claim that appellants' errors are deemed to be waived pursuant to the provisions of Supreme Court Rule 2-17(f).
In their assignment of errors appellants have set forth eight specifications, the first of which is that the court erred in overruling appellants' motion for a new trial. The other seven are as follows:
It is well settled that independent assignments of error, such as that the decision of the court is contrary to law and is not sustained by sufficient evidence, present no question. Better Taste Popcorn Co. v. Drake, 1952, 122 Ind.App. 696, 107 N.E.2d 801; Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice, Vol. 2, § 2386, p. 156, Comment 2, and authorities there cited.
The second, third, fourth, fifth, sixth, seventh and eighth specifications are not proper as independent assignments of error. Therefore, no question is presented by them. The only assignment which the court will consider here is the first one, which is that the trial court erred in overruling appellants' motion for a new trial.
At page 42 of appellants' brief it is stated:
'A motion for new trial was overruled and such ruling is one of the errors assigned on this appeal.'
Then appellants, by proper petition, were permitted to amend their brief, which they did by inserting pages designated as 42a, 42b and 42c. These pages recite the assignment of errors and the motion for new trial. Further, on page 42 of their brief, appellants have stated:
'The several errors assigned present substantially the same questions in different form and will be covered in a single argument.'
As we have pointed out, appellants have only one assignment of error to be considered, that is, the overruling of the motion for a new trial. While appellants did not follow the exact letter of Rule 2-17(e) in presenting their argument in their brief, they made a good-faith attempt to do so, even to the extent of amending their brief. Such being the case, this court will overlook derelictions. Brower v. State, 1956, 236 Ind. 35, 138 N.E.2d 237; Miller v. Muir, 1945, 115 Ind.App. 335, 56 N.E.2d 496. This court does not desire to dispose of litigation by mere technicalities. Witte v. Witte et al., 1953, 123 Ind.App. 644, 113 N.E.2d 166.
Appellees, in support of their position, cite the case of Williams v. Williams, 1953, 123 Ind.App. 495, 112 N.E.2d 305, and Hughes et al. v. State Bank of West Terre Haute, 1954, 124 Ind.App. 511, 117 N.E.2d 563. These were cases where there were flagrant violations of Rule 2-17(e). In the Williams case appellants' brief contained no index, no concise statement of the record, nor the assignment of errors. In the Hughes case there was no presentation of the assignment of errors in appellants' brief. This is not so in the instant case. Furthermore, on account of the very capable answer brief filed to the merits by appellees, we do not believe the appellees were misled or confused because of appellants' presentation of their argument. The errors presented by appellants in their brief shall not be deemed to have been waived pursuant to Supreme Court Rule 2-17(f).
The facts of this case are as follows: On or about March 21, 1956, appellee, Dr. Irving R. Rutkin, filed his petition for a variance with the Board of Zoning Appeals of Indianapolis to permit him to build a 16-family apartment building, located 35 feet from the front lot line of the premises known as 3602 Central Avenue, in the City of Indianapolis. The project was to cost approximately $175,000, off-street parking was provided, and maps and plans of the proposed improvement were attached to the petition. The owner of the property, appellee Joseph W. Selvage, signed a statement consenting to the application and the proposed variance. Notices of the filing and the date of hearing were duly sent to various property owners in the vicinity. A written remonstrance was filed with the Board by neighboring property owners.
The hearing before the Board of Zoning Appeals took place on April 13, 1956. Mr. William B. Miller, an attorney, represented the petitioner and presented the proposed project, exhibiting drawings and plans to the Board. He stated that the neighborhood was becoming less of a residential section and more commercialized; that College Life Insurance Company had a large office building on Central Avenue just north of the intersection of 34th Street; that the Moynahan Apartment Building was located on the corner of 34th Street and Central Avenue; that the Borinstein Jewish Home and School were south of the lot under consideration facing Central Avenue; that petitioners were suffering hardship because the premises involved were vacant and there was no chance to build anything 'worth while' on it. The apartment building was to be constructed of brick and stone, completely air-conditioned, and the apartments would rent from $160 to $180 per month. On behalf of his client, Mr. Miller offered to change the set-back line from 35 feet, as originally proposed, to 50 feet, so as to make it conform to the General Building Code.
A large group of neighbors who are property owners in the vicinity were present and voiced their objections. They were represented by Mr. Leo X. Smith, an attorney, who brought out the fact that numerous petitions for variances for commercial purposes in that neighborhood had been denied during the past ten years; that there would be a serious traffic problem if the variance were granted; that this area was strictly residential; that three of the remonstrators had bought their homes in this neighborhood during the past year, relying on the fact that their houses would be in a residential...
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