Noblesville City Plan Commission v. Gatewood

• Decision Date: 09 April 1963
• Docket Number: No. 19830,No. 1,19830,1
• Citation: 189 N.E.2d 426,134 Ind.App. 609
• Parties: NOBLESVILLE CITY PLAN COMMISSION, City of Noblesville, Indiana, Appellant, v. Carl David GATEWOOD, Betty Jo Gatewood, Appellees
• Court: Indiana Appellate Court

Page 426

189 N.E.2d 426

134 Ind.App. 609

NOBLESVILLE CITY PLAN COMMISSION, City of Noblesville Indiana, Appellant, v.Carl David GATEWOOD, Betty Jo Gatewood, Appellees.

No. 19830.

Appellate Court of Indiana, Division No. 1.

April 9, 1963.

Roberts & Church, Campbell, Campbell, Malan & Kyle, Noblesville, Anderson, Correll & Pettigrew, Fansler, Fauvre, Dongus & Gemmer, Indianapolis, for appellant.

Robert S. Webb, Irene T. Webb, Paul G. Smith, Noblesville, Webb, Webb & Smith, Noblesville, of counsel, for appellees.

RYAN, Justice.

The complaint alleges in substance that the Common Council of the City of Noblesville adopted a Master Plan Ordinance on September 23, 1957, pursuant to the Acts of 1947, ch. 174, and that said ordinance was further amended on October 26, 1959.That thereafter on April 14, 1960, more than fifty freeholders who resided in Delaware Township, Hamilton County, Indiana, requested that Delaware Township be joined with the City of Noblesville for planning and zoning purposes.A hearing was held on this petition by the trustee of Delaware Township and his advisory board on May 9, 1960.No remonstrances were filed to this petition and after the hearing it was sent to the appellant requesting such joinder.Then, on August 29, 1960, pursuant to the recommendation of the appellant, the Common Council of the City of Noblesville adopted a resolution approving such joinder, and the City of Noblesville and Delaware Township then executed a joinder agreement.

It further alleges that on August 29, 1960, the real estate of the appellees was used for residential and agricultural purposes only and that no part of the land was improved by any hard surface runway for use of airplanes and no buildings for commercial use were in existence or under construction but 'in September of the year, 1960, the exact date being unknown to Plaintiff, the Defendants began grading a portion of their said land as a runway for the landing of planes.'

On October 10, 1960, the Common Council of the City of Noblesville adopted its OrdinanceNo. 796, by the terms of which the Master Plan was extended to include all of Delaware Township, and that at this time the land in question was not used for any purpose other than residential and agricultural.

It further alleges that the appellees' land is within the jurisdiction of the appellant and that under the terms of the ordinance it is limited to residential and agricultural use.

That on October 31, 1960, appellees were notified by the attorney for the plaintiff that appellees should take no further action until the appellant was satisfied as to the usage of the land in question.The defendants made no reply to such letter nor made any application for any improvement permit.Since October 10, 1960, appellees had violated the terms and provisions of the zoning ordinance by constructing a hard surface runway, a service station, by constructing and equipping a building for use as a restaurant, by organizing and announcing the intended operation of aircraft from the premises, and by using and/or permitting land to be used for the operation of the business of buying and selling airplanes and other purposes incidental thereto, all of which the appellant claims are in violation of the zoning ordinances.

Appellees filed their demurrer to this complaint alleging (1) that the court had no jurisdiction of the subject matter, (2) that the court had no jurisdiction of the case, and (3) that the complaint does not state facts sufficient to constitute a cause of action.The demurrer to the complaint was sustained and the appellant refused to plead over and judgment was rendered in favor of the appellees, the defendants below.The appellant now assigns as error the sustaining of the demurrer by the court below.

The grounds for demurrer are specifically provided for by statute, being Burns'§ 2-1007, 1946 Replacement.Such statute makes no provision for demurring because the court does not have jurisdiction of the case.However, the ground of the demurrer that the court had no jurisdiction of the subject...