Newman v. Spence, 64A04-8909-CV-412

• Citation: 565 N.E.2d 350
• Decision Date: 17 January 1991
• Docket Number: No. 64A04-8909-CV-412,64A04-8909-CV-412
• Parties: James NEWMAN, Alfred Putnam, Robert Martino, Ray Tittle, Jr., and Donna Wilkes, as the Board of Zoning Appeals for Dune Acres, Indiana; Delano Wilkes, Donald Koehler, and Sharon Snyder, as the Board of Trustees of the Town of Dune Acres, Indiana; and Mary Ann Putnam, Appellants (Defendants Below), v. William A. SPENCE and Dee Gaynor Spence, Appellees (Plaintiffs Below).
• Court: Court of Appeals of Indiana

Page 350

565 N.E.2d 350

James NEWMAN, Alfred Putnam, Robert Martino, Ray Tittle,

Jr., and Donna Wilkes, as the Board of Zoning Appeals for

Dune Acres, Indiana; Delano Wilkes, Donald Koehler, and

Sharon Snyder, as the Board of Trustees of the Town of Dune

Acres, Indiana; and Mary Ann Putnam, Appellants (Defendants Below), v. William A. SPENCE and Dee Gaynor Spence, Appellees (Plaintiffs Below).

No. 64A04-8909-CV-412.

Court of Appeals of Indiana,

Fourth District.

Jan. 17, 1991.

Duane W. Hartman, Blachly, Tabor, Bozik & Hartman, Valparaiso, for appellees.

CONOVER, Judge.

Defendants-Appellants James Newman and others named in the caption as zoning appeals board members, Delano Wilkes and others likewise named as town board members, and Mary Ann Putnam (collectively, the Board), appeal the Porter Superior Court's judgment determining certain provisions of the Town of Dune Acres Zoning Ordinance were unconstitutional as they applied to the Spences' property.

We affirm.

The issues presented by this appeal are whether the trial court erred by

1. applying incorrect standards of review in the appeal taken from the Board of Zoning Appeals' (BZA) decision,

2. conducting a prohibited trial de novo,

3. entering irrelevant and incorrect conclusions of law which thus were void,

4. failing to dismiss the petition for writ of certiorari on res judicata grounds, and

5. making findings on constitutional grounds in this proceeding.

William Spence and his wife purchased a house and lot in Dune Acres which was bounded on two sides by Dune Acres town park land and on the North by Lake Michigan beach. The Spences' home was built in 1926 on Lot 200. They also own Lot 201 which adjoins Lot 200 on the South end of its Eastern border South of the town park land. Plaintiff's Exhibit 7 is reproduced below for clarity. The Spences in 1987 filed a petition for variance to permit the building of an addition to their house which would be closer to their lot line than permitted in the zoning ordinance. This petition was heard, denied, and was never appealed.

The Spences then filed another petition asking for substantially the same relief but containing "several new matters which were not presented in 1987." (R. 38). After hearing, the Board denied the Spences' second petition. The Spences then filed a petition for writ of certiorari with the Porter Superior Court seeking review of the Board's decision.

The trial court reviewed the record, received additional evidence and exhibits, then entered judgment determining the sideyard setback requirements of the zoning ordinance "are unconstitutional and void as to [Spences'] Lot 200 only."

The Board appeals. Further facts, as necessary, are included in the later portions of this opinion.

The granting of a variance by a board of zoning appeals is discretionary even though the petitioner may have satisfied the statutory criteria. Boffo v. Boone Cty. Bd. of Zoning Appeals (1981) Ind.App., 421 N.E.2d 1119, 1123. Thus, the trial court reviews the board's action as to whether or not under the board's findings of fact, it has abused its discretion by refusing to grant the variance request. City of East Chicago, Ind. v. Sinclair Refining Co., (1953), 232 Ind. 295, 111 N.E.2d 459, 463. In order to upset the board's determination when it has denied a variance, the reviewing court, after resolving all doubts respecting the evidence in favor of the board's decision, must find that each of the statutory prerequisites has been established as a matter of law, that is, "the evidence supporting each prerequisite must be such that no reasonable man could fail to accept that prerequisite as proved." Metropolitan Bd. of Zoning Appeals v. Standard Life Ins. Co., (1969) 145 Ind.App. 363, 251 N.E.2d 60, 61, trans. den'd. Those statutory prerequisites are:

(1) the approval will not be injurious to the public health, safety, morals, and general welfare of the community;

(2) the use and 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;

(4) the strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and

(5) the approval does not interfere substantially with the comprehensive plan adopted under the 500 series [comprehensive plan provisions] of this chapter.

IC 36-7-4-918.4. A court may not substitute its decision for that of a board of zoning appeals. Habig v. Harker (1983), Ind.App., 447 N.E.2d 1114, 1116.

In reviewing the decision of a board of zoning appeals, this court and the trial court are bound by the same standard. Maxey v. Board of Zoning Appeals (1985), Ind.App., 480 N.E.2d 589, 592. However, zoning regulations cannot be imposed unless they bear a substantial relation to the public health, safety, morals, or general welfare. Board of Zoning Appeals of the Town of Meridian Hills v. Schulte (1961), 241 Ind. 339, 172 N.E.2d 39, 43; Board of Zoning Appeals of Decatur v. Decatur Indiana Company of Jehovah's Witnesses (1954), 233 Ind. 83, 117 N.E.2d 115, 118. If it should appear that the evidence upon which the board of zoning appeals acted was devoid of probative value, that the quantum of legitimate evidence was so proportionately meager as to lead to a conviction the board's finding does not rest on a rational basis, or that the result of the hearing must have been substantially influenced by improper considerations, the board's order will be set aside. Warren v. Indiana Telephone Co. (1940) 217 Ind. 93, 26 N.E.2d 399, 409; Fryer v. City of New Albany (1963), 135 Ind.App. 454, 194 N.E.2d 417, 420; Bd. of Zoning Appeals of City of Mishawaka v. School City of Mishawaka (1957) 127 Ind.App. 683, 145 N.E.2d 302, 305.

Unconstitutionality is illegality of the highest order. Jehovah's Witnesses, 117 N.E.2d at 117.

When reviewing the judgment of the trial court, we will not weigh the evidence but will look only to that evidence, and the reasonable inferences arising therefrom, which support the judgment. The trial court's judgment will be set aside only in instances where the evidence is without conflict and can lead to but one result, and the trial court in its judgment has reached an opposite conclusion. When the trial court has made special findings, as it was required to do here, we must affirm the judgment unless we are satisfied that those findings are clearly erroneous. Metropolitan Bd. of Zoning Appeals v. Sheehan Constr. Co. (1974), 160 Ind.App. 520, 313 N.E.2d 78, 82.

The evidence before both the BZA and the trial court demonstrates the Spences' house was built on Lot 200, an 80 foot lot, and was 80 feet wide. As the board's minutes reveal, the house was

built in 1926 and runs virtually from lot line to lot line (thus an 80 foot house on an 80 foot lot, legal bacause [sic] 'grandfathered') and that no addition is possible without invading the now required side yard setback. His lot was held to be unique since it is bounded on both sides by Dune Acres Town park land.

(R. 55). When the Spences' house was built, there were no setback lines. Setback requirements were not enacted in Dune Acres until 1959. (R. 168).

The Spences' kitchen is on the Southeast side of their house. The East wall of the present kitchen is 1.4 feet from their lot line. They propose to extend their present kitchen 8.5 feet to the South. The East wall of the extension would be on the exact line of their current East kitchen wall if extended Southward. All proposed construction would occur on Lot 200 without incursion on Town park land. Adding the addition to the present kitchen is the only feasible way to enlarge the Spences' kitchen and still keep the house in its present style. The Spences' closest neighbor, Dr. Martino, whose house is 300 feet away is also a BZA member. He has no objection to the proposed kitchen addition, wrote a letter in support of it, and voted to permit the variance. In the recent past, the BZA approved a variance for the Lathrops, similarly situated near Town park land, to permit the building of a solarium within the Town's backyard setback line. The town park land in question is wooded, covered with underbrush growing from the sand, and vacant.

The board's minutes conclude as follows:

James Newman summarized his views: 1. No hardship had been demonstrated; the situation was not unique since many older houses had similar non-conforming uses and could ask for variances to expand; the Lathrop case was not a precedent because of the difference in percentage of setback being requested; the intrusion to within one foot of park land was in fact detrimental to the public welfare. The majority of the Board concurred with these views and the variance was denied by a vote of 3 to 2.

(R. 60). The trial court after taking additional testimony and other evidence entered findings of fact. The trial court found, in essence, the same evidentiary facts, but reached a different conclusion. Based on its findings, the trial court determined the evidence was so meager, the BZA's decision did not rest on a rational basis, and its decision was arbitrary and unreasonable.

The board first argues the trial court did not apply the proper standard of review when considering the BZA's decision. We disagree.

Paragraph 18 of the trial court's conclusions states

18. The evidence is so meager that the finding of the BZA does not rest on a rational basis, is arbitrary and unreasonable, and is hereby reversed.

This is a proper standard of review. Warren, Fryer, and Jehovah's Witnesses, supra. This issue presents no error.

The Board next posits the trial court's judgment is based on irrelevant and inaccurate conclusions of law and is therefore void. Even if so, that issue is of no moment. We will sustain a trial court's ruling on appeal if it was correct for...