Reinking v. Metropolitan Bd. of Zoning Appeals of Marion County, 49A04-9512-CV-462

CourtCourt of Appeals of Indiana
Citation671 N.E.2d 137
Docket NumberNo. 49A04-9512-CV-462,49A04-9512-CV-462
PartiesAllen F. REINKING and Ola Ruth Reinking, Appellants-Petitioners, v. METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, Indiana, Division II, et al., Appellees-Respondents.
Decision Date13 September 1996

Gregory P. Schmith, Indianapolis, for Appellants.

Stephen Neff, Indianapolis, for Appellees.

OPINION

CHEZEM, Judge.

Case Summary

Petitioners-Appellants, Allen and Ola Reinking (collectively, "the Reinkings"), appeal the trial court's order which upheld the decision of the Metropolitan Board of Zoning Appeals ("MBZA" or "the Board"), to deny their Petition for Variance. We affirm.

Issues

The Reinkings present two issues for our review, which we restate as follows:

I. Whether a subsequent purchaser of property may successfully raise the prior owner's issue of taking without just compensation in violation of Sec.21, Article I of the Indiana Constitution and the due process clause of the Fourteenth Amendment of the United States Constitution;

II. Whether knowledge of a restrictive zoning ordinance prior to the acquisition of property waives the right to argue undue hardship; and,

III. Whether the Reinkings' variance petition satisfied the statutory requirements of I.C. 36-7-4-918.5.

Facts and Procedural History

Lot 244 was originally platted in 1956 with approximately 15,000 square feet of land. After the State of Indiana took the northern portion of the lot for construction of interstate 465, the lot had a remaining square footage of approximately 8,500 feet. The dwelling district ordinance in question was adopted in 1989, after the construction of I-465. Uncontested testimony in the record supports the fact that the Reinkings purchased lot 244 after 1989. After purchasing the property from a tax sale buyer, the Reinkings petitioned the MBZA for a variance of developmental standards. Their petition was denied. Subsequently, the Reinkings filed a Verified Petition for Writ of Certiorari. The trial court set forth the following findings of fact and conclusions of law:

Order

This matter having come before the Court on Petitioners' Verified Petition for Writ of Certiorari, and the Court being duly advised in the premises, now finds as follows:

1. The Petitioners, Allen F. Reinking and Ola Reinking, are the owners of the real estate commonly known as 2358 Redfern Drive Indianapolis, Indiana.

2. The real estate is a corner, platted lot in Rosedale Hills Subdivision, legally described as Lot 244 in Rosedale Hills Subdivision, and the lot is located at the intersection of South Keystone Avenue and Redfern Drive in Indianapolis, Indiana.

3. The real estate is classified under the pertinent Zoning Ordinance as D-2 Residential. Lot 244 is comprised of dimensions as follows: 100 feet of street frontage along Redfern Drive, which is the South side of the lot; 95 feet of street frontage along Keystone Avenue, which is the East side of the lot; 102 feet along the North line; and 75 feet along the West line.

4. The Zoning Ordinance requires a 25 foot minimum setback line from Redfern Drive and a 55 foot setback from Keystone Avenue.

5. The Petitioners filed a Petition for Variance before the Board of Zoning Appeals requesting a variance from the 25 foot Redfern Drive setback to 20 feet and from the 55 foot Keystone Avenue setback to 35 feet. Petitioners also requested modification of the D-2 minimum lot area requirement.

6. The Department of Metropolitan Development reviewed the Petition for Variance, inspected the property and issued its staff report recommending approval of the Petition.

7. On March 21, 1995, the Board heard the Petition and voted 3-0 to deny the variance. On June 20, 1995, the Board adopted the following Negative Findings of Fact as required by law:

1. The grant will be injurious to the public health, safety, morals and general welfare of the community because the proximity of the residence to the street would interfere with the motorist[s'] and pedestrian[s'] visibility and increase the probability of an Accident.

2. The use or value of the area adjacent to the property included in the variance will be affected in a substantially adverse manner because the proposed residence would not be of a similar setback nor a similar building and lot area as the long-time established residences in the area.

8. There was sufficient evidence to support the Board's denial of the Petition for Variance.

9. The Decision of the Board of Zoning Appeals is affirmed.

Discussion and Decision
I. Standing

The trial court entered specific findings of fact and conclusions of law sua sponte. When reviewing such findings, we employ a two-tiered standard of review. Edward D. Jones & Co. v. Cole, 643 N.E.2d 402, 405 (Ind.Ct.App.1994). First, we determine whether the findings support the judgment; then, we determine whether the conclusions of law and the judgment are clearly erroneous based upon the findings of the court. Id. When a trial court enters such findings sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not entered findings. In re Marriage of Snemis, 575 N.E.2d 650, 652 (Ind.Ct.App.1991). We may affirm a general judgment on any theory supported by the evidence. Id. We must determine whether the conclusions of law and judgment are clearly erroneous in light of the findings. American Cyanamid Co. v. Stephen, 623 N.E.2d 1065, 1070 (Ind.Ct.App.1993).

No Indiana case has directly addressed the present issue of whether a subsequent purchaser of property may successfully challenge the constitutionality of a zoning ordinance that adversely affects the value of property when the ordinance was adopted prior to their purchase. The Reinkings contend that the zoning ordinance as applied results in a unconstitutional taking of property without just compensation. We disagree. An applicant for a variance must have standing. Fail v. LaPorte County Board of Zoning Appeals, 171 Ind.App. 192, 355 N.E.2d 455, 459 (1976). We have long determined that Ind. Rules of Procedure, Trial Rule 17(a), 1 governing standing, is applicable to administrative hearings, including zoning board of appeals proceedings. Bowen v. Metropolitan Board of Zoning Appeals in Marion County, 161 Ind.App. 522, 317 N.E.2d 193, 197 (1974). The purpose of standing, or real party in interest, requirement is to prevent the filing of meritless and frivolous suits. Harbeson v. Town of Lanesville, 486 N.E.2d 1065, 1068 (Ind.Ct.App.1985). Indiana Code 34-4-10-2 provides:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.

The Reinkings, in order to have standing, must show that they are the real party in interest with a substantial, direct, or immediate interest in the outcome of the suit.

Since Indiana has not previously considered this particular issue, we look to similar cases and other jurisdictions which have spoken on the subject. There is general accord that an applicant requesting a variance must show an ownership interest. See Anno., 89 A.L.R.2d 664. In Bowen, a lessor of land appealed the trial court's decision upholding the Board of Zoning Appeals' grant of variance to the lessee. Bowen, 317 N.E.2d 193. We determined that the lessee did not have standing to request a variance because its interest did not qualify as a real party in interest. Id., 317 N.E.2d at 197-199. Although we determined in Bowen that the lessee did not have standing, the Bowen lessee was closer to being a party at interest than the Reinkings because the lease and questions as to the ordinance restrictions arose during the lessee's use of the property. We determined that the lessee did not have standing in Bowen because the lessor of the land had not relinquished all rights to the property. Assuming arguendo, that we had determined that the lessor had abjured all rights to the ownership of the property, the lessee would have then been deemed the owner in interest because the restrictive ordinance was enacted during the lessee's ownership of the property.

In Fail, we determined that a contract purchaser of real estate had sufficient standing to request a variance for the operation of a sanitary landfill, notwithstanding that the sale of the tax property required prior approval. Fail, 355 N.E.2d at 459. The rationale prevalent in contract purchaser and lessee cases is that the contract or lease has the effect of making the agent an owner in fee. Likewise, a petitioner before a MBZA must prove he is the real party in interest in order to have standing to raise constitutional issues. The Reinkings' case is distinguished. The record does not show when the Reinkings actually purchased the lot, but does indicate that the Reinkings purchased the property after the ordinance was enacted. The Reinkings lack standing because the taking occurred before they acquired the property. That is, the Reinkings were not the owners of the lot when the taking occurred. We are not determining that subsequent owners of tax sale property are not entitled to raise constitutional issues that arise during their proprietorship. We have determined only that subsequent owners of tax sale property are required to be the real party in interest at the time of taking. Therefore, any argument as to an unconstitutional taking of lot 244 without just compensation should have been raised at the time the ordinance was enacted and affected the owner in fee.

II. Practical Difficulty

We next determine whether knowledge of a restrictive zoning ordinance...

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