Speedway Bd. of Zoning Appeals of Marion County v. Standard Concrete Materials, Inc.

• Decision Date: 23 December 1971
• Docket Number: No. 571A88,No. 2,571A88,2
• Citation: 276 N.E.2d 589,150 Ind.App. 363
• Parties: The SPEEDWAY BOARD OF ZONING APPEALS OF MARION COUNTY, Indiana, et al., Appellants (Defendants below), v. STANDARD CONCRETE MATERIALS, INC., Appellee (Plaintiff below)
• Court: Indiana Appellate Court

Page 589

276 N.E.2d 589

150 Ind.App. 363

The SPEEDWAY BOARD OF ZONING APPEALS OF MARION COUNTY Indiana, et al., Appellants (Defendants below), v. STANDARD CONCRETE MATERIALS, INC., Appellee (Plaintiff below).

No. 571A88.

Appellate Court of Indiana, Division No. 2.

Dec. 23, 1971.

Roberts & Ryder, City-County Legal Div., Jack H. Rogers, Ronald R. Snyder, Indianapolis, for Speedway Board of Zoning Appeals.

David F. Rees, for The Metropolitan Development Comm. of Marion County and The Dept. of Metropolitan Development, City of Indianapolis, Division of Planning and Zoning.

David A. Jester, Bulen & Castor, Indianapolis, for Standard Concrete Materials, Inc.

STATON, Judge.

This is an appeal from a judgment rendered by the Marion County Superior Court, Room 2, which reversed the Speedway Board of Zoning Appeals' denial of a variance.

Standard Concrete Materials, Inc. filed a petition for a variance to construct a 'convenient' shopping center which consisted of four retail stores to be open twenty-four hours a day with off-street parking at 2800 North High School Road in Marion County, Indiana. The site contains approximately 1.35 acres. Apartment developments flank the south and west sides, while Rotz Engineering, a single-story office structure, is to the immediate north. Beyond this is a medical office building. Another medical office is located to the southwest and single family residences are located to the east and northeast of the site. This described tract of real estate now carries an A--2 zoning classification which permits residential and agricultural uses.

A public hearing was held May 6, 1970 on the merits of the petition for a variance under the Board's Docket No. 1970--SV--3. The request for a variance was denied. The following findings were made by the Speedway Board of Zoning Appeals:

'1. THE GRANT OF THE VARIANCE WILL NOT BE ( ) WILL BE (X) INJURIOUS TO THE PUBLIC HEALTH, SAFETY, MORALS, AND GENERAL WELFARE OF THE COMMUNITY because: It creates a traffic hazard.

'5. THE GRANT OF THE VARIANCE DOES NOT ( ) DOES (X) INTERFERE SUBSTANTIALLY WITH THE METROPOLITAN COMPREHENSIVE PLAN because: Metropolitan Development Commission studies have recommended non-traffic generating business office use to serve as a buffer between the residential area to the East and the apartments to the West.

Standard Concrete Materials, Inc. filed its Petition for Certiorari on June 4, 1970, and among other things set forth at paragraph 7 thereof, the following:

'7. That the remonstrance in the subject case presented no evidence to the Board, showing that:

(a) The grant of the variance would be injurious to the public health, safety, morals and general welfare of the community.

(e) That the grant of the variance would interfere with the Metropolitan Comprehensive Plan.'

The Marion County Superior Court reversed the negative decision of the Speedway Board of Zoning Appeals on December 4, 1970 and made its 'Special Findings of Fact, Conclusion of Law and Decree.' Paragraphs 6(a) and (e) are the only portions that will be set out here for the purpose of this appeal:

'6. The evidence in this cause, the transcript of proceedings before the defendant Board, the exhibits introduced therein, along with communications from various other agencies and with the orders, entries and papers in connection with the hearing before the Board, disclose that there was substantial evidence of probative value establishing the following:

(a) The grant of the variance will not be injurious to the public health, safety, morals and general welfare of the community because; the proposed use does not involve noxious activity, air pollution or traffic congestion; surface water is adequately drained and proper sanitary facilities are available.

(e) The grant of the variance does not interfere substantially with the Metropolitan Comprehensive Plan because; the area is designated for commercial use, fully developed with the exception of this one remaining tract; the proposed development will not have a substantial affect on the Comprehensive Plan for the reason the area is established; further the Plan does not consider this specific tract in relation to surrounding development.'

The questions presented here upon appeal are:

1. Did the Marion County Superior Court exceed the limits of judicial review when it reviewed the negative decision of the Speedway Board of Zoning Appeals of Marion County, Indiana?

2. Is 'substantial evidence of probative value' a proper test of inquiry where there is a judicial review of a negative decision?

We hold that the Marion County Superior Court did exceed the limits of judicial review and that 'substantial evidence of probative value' is not a proper test for reviewing a negative decision.

Appellee, Standard Concrete Materials, Inc., has failed to file an answer brief: therefore, '* * * it is only incumbent upon * * * (appellant, Speedway Board of Zoning Appeals of Marion County) to make a prima facie showing of reversible error in order to entitle * * * (it) to a reversal of the trial court's decision.' DuFour v. DuFour (1971), Ind.App., (27 Ind.Dec. 20), 273 N.E.2d 102, 104. Court citing Berry v. Town of Fowler (1960), 240 Ind. 443, 166 N.E.2d 333; Kuykendall v. Co. Comm'rs. of Marion County (1968), 142 Ind.App. 363, 234 N.E.2d 860; Nunemaker v. Glassburn (1965), 137 Ind.App. 655, 210 N.E.2d 668.

The statute, IC 1971, 18--7--2--71; Ind.Ann.Stat. § 53--969 (Burns 1971 Cum.Supp.) provides:

'Petitions for variance.--The boards of zoning appeals, in accordance with the territorial jurisdiction of such boards as established by section 58 and 59 (§§ 53--958, 53--959) of this act, are hereby authorized to grant such variance from the applicable zoning ordinance upon determination in writing that:

1. The grant will not be injurious to the public health, safety, morals, and general welfare of the community.

2. The use or 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 and such condition is not due to the general conditions of the neighborhood.

4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which the variance is sought.

5. The grant of the variance does not interfere substantially with the metropolitan comprehensive plan adopted pursuant to sections 31 through 37 (§§ 53--931--53--937) of this act.

The scope of judicial review is more limited when the decision from the Board of Zoning Appeals is negative. Where there is a denial of a petition for a variance and reversal on review, '* * * the reviewing court must find that each of the five statutory prerequisites has been established as a matter of law, giving wide construction to the total evidence and resolving all doubts in favor of the board's determination. * * * In other words, the evidence supporting each prerequisite must be such that no reasonable man could fail to accept that prerequisite as proved.' Metropolitan Board of Zoning Appeals v. Standard Life Insurance Co. (1969), Ind.App., (18 Ind.Dec. 562), 251 N.E.2d 60.

The Marion County Superior Court used the test of 'substantial evidence of probative value' which is applicable only when reviewing a decision granting a variance. In R. J. Realty, Inc. v. Keith (1969) Ind.App., 250 N.E.2d 757, we held that:

'The findings of facts and conclusions of law made by the court below demonstrate a failure to apply the proper rule of law in reviewing the decision of the board. In determining whether the board's decision was, or was not, contrary to law, it is immaterial that 'there is substantial evidence of probative value in the record tending to show * * *' the converse of the statutory determinations made by the board. The question before the court was whether there was or was not 'substantial evidence of probative value authorizing the grant of the variance on (each of the five) grounds' which the board did specially find to have been proven as required by Burns' Ind.Stat.Ann., § 53--969 (1969 Supp.). Kessler etc. v. Board of Zoning Appeals, 137 Ind.App. 610 (6 Ind.Dec. 109), 209 N.E.2d 43 (1965); Nelson v. The Board, etc., 240 Ind. 212, 162 N.E.2d 449 (1959).'

The test of 'substantial evidence...