Suess v. Vogelgesang, 671A119

• Decision Date: 17 April 1972
• Docket Number: No. 671A119,671A119
• Citation: 151 Ind.App. 631,281 N.E.2d 536
• Parties: Robert SUESS et al., Defendants-Appellants, v. E. Ross VOGELGESANG, as Executive Director of the Metropolitan Planning Department of Marion County, Indiana, et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 536

281 N.E.2d 536

151 Ind.App. 631

Robert SUESS et al., Defendants-Appellants, v. E. Ross VOGELGESANG, as Executive Director of the Metropolitan Planning Department of Marion County Indiana, et al., Plaintiffs-Appellees.

No. 671A119.

Court of Appeals of Indiana, Second District.

April 17, 1972.

Rehearing Denied May 22, 1972.

Ronald S. Lieber, Eugene W. Lausch, Lieber & Neff, Indianapolis, for defendants-appellants.

Nola A. Allen, John H. Baldwin, Indianapolis, for plaintiffs-appellees.

SULLIVAN, Judge.

The Metropolitan Board of Zoning Appeals of Marion County, Indiana granted a 'Use' variance to appellants (Suesses) sought for the purpose of utilizing residential premises as a physician's office. Certain remonstrators and the Metropolitan Planning Department (appellees herein) opposed such variance. It should be noted that the Planning Department based their opposition not upon violation of the Master Plan but rather upon the fact that Suess, a practicing physician, had razed a garage, had resurfaced the area thus vacated for parking purposes and had commenced remodeling the residential structure before seeking a variance or appropriate building permits.

ABSENCE OF VERBATIM STATEMENT OF JUDGMENT NOT FATAL TO THIS APPEAL

Appellees correctly point out that appellants' brief is defective in that it does not, as required by Rule AP. 8.3(A)(4), set forth a verbatim statement of the judgment below. Said rule reads as follows:

'Arrangement and Contents of Briefs.

(A) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(4) A statement of the case. The statement shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below, including a verbatim statement of the judgment.' (Emphasis supplied)

To be sure, the directive of the rule concerning the statement of the judgment is unequivocal. While the absence of such statement from an appellant's brief clearly authorizes affirmance without consideration of the merits (Hauser v. Markwell (1942) 111 Ind.App. 420, 41 N.E.2d 652), such affirmance is not mandatory. The dictate of Rule 8.3(A)(4) is for the purpose of aiding and expediting appellate review and is founded upon the reality of appellate case loads and human time limitations. The requirement is thus a convenience to the reviewing court and is not jurisdictional. It is often a necessary convenience, however, such as when the precise words of the judgment are in issue or must be scrutinized to determine the exact relief granted or denied; or if multiple litigants are involved in order to determine for whom or against whom the judgment runs. Likewise, in certain actions such as proceedings for injunctive relief or for declaratory judgment, or as in Hauser v. Markwell, supra, for reformation of a contract for sale of real estate and for possession of the real estate and damages for wrongful detention, the verbatim statement of the judgment is not a mere formality. In those and similar instances, the precise phrasing of the judgment often times bears direct correlation to the argument of appellant. It is the judgment in such cases which gives meaning to the appellant's argument. Antithetically, where the relief granted or denied is basic and uncomplicated as here, i.e., a one sentence reversal of an administrative determination, the judgment is self-evident and implicit in the mere fact of appeal. Additionally, the judgment below, together with the findings and conclusions tending to support that judgment, are graciously provided by appellees' brief. Accordingly, we need not search the record therefor and thus turn to a consideration of the merits of appellants' contentions.

Only three of the four issues argued by appellants in their brief are properly before us. The first issue which concerns the failure of appellees' Petition for Writ of Certiorari to be verified was not set forth in appellants' Motion to Correct Error. Such contention is, therefore, waived. Indiana Rules of Procedure, TR. 59(G), IC 1971, 34--5--1--1.

JUDGMENT OF COURT BELOW CANNOT REST UPON ALLEGED ILLEGALITY IN BOARD'S FINDING THAT VARIANCE DID NOT INTERFERE SUBSTANTIALLY WITH COMPREHENSIVE METROPOLITAN PLAN

Appellants assert as error the following conclusion made by the reviewing court:

'That said decision is illegal, and was an abuse of the discretionary powers of the Board, as the evidence was contrary to their finding that the variance would not interfere with the Comprehensive Metropolitan Plan.'

It must be pointed out that the Board did not, as stated by the reviewing court, find that the variance 'would not interfere with the Comprehensive Metropolitan Plan'. Rather, the Board found that the variance would not substantially interfere. We must thus agree with the contention of Suesses in this regard. It is not every interference with the Comprehensive Plan which will preclude the granting of a zoning variance. The only burden upon a petitioner for a variance in this respect is that he show that it does not 'substantially interfere.' I.C. 1971, 18--7--2--71, Ind.Ann.Stat. § 53--969 (Burns 1971 Supp.) ¹ Thus, the court's finding that 'the evidence was contrary to (the Board's) finding that the variance would not interfere with the Comprehensive Metropolitan Plan' cannot properly serve as a basis for reversal of the Board's determination to grant the variance.

Further, no question with regard to 'substantial interference' was before the Marion Superior Court. The Petition for Writ of Certiorari filed by the remonstrators-appellees did not attack the Board's determination upon that basis. Such question was, therefore, not a proper matter of consideration for the reviewing court (Kessler-Allisonville Civic League, Inc. v. Marion Co. Bd. of Zoning Appeals (1965) 137 Ind.App. 610, 209 N.E.2d 43), and the judgment cannot be affirmed upon a 'substantial interference' finding.

If, therefore, the decision of the reviewing court is to be affirmed, it must be with respect to matters properly before that court. In this respect, the Petition for Writ of Certiorari was confined to two reviewable assertions of illegality. ²

EVIDENCE WAS SUFFICIENT TO SUPPORT BOARD'S FINDING OF HARDSHIP WITHOUT REGARD TO ALLEGED SELF-CREATED HARDSHIP, I.E., PREMATURE AND UNAUTHORIZED USE AND ALTERATION OF THE PREMISES BY PETITIONERS

A variance will not be granted unless application of the existing zoning classification will constitute unusual and unnecessary hardship. I.C. 1971, 18--7--2--71 Ind.Ann.Stat. § 53--969 (Burns 1971 Supp.). Whether unnecessary hardship exists so as to authorize a variance, is a factual question to be determined by the Board in its discretion. Nelson v. Bd. of Zoning Appeals (1959) 240 Ind. 212, 162 N.E.2d 449. No single fact determines the existence of such hardship but all relevant factors taken together must indicate that the property for which variance is sought cannot reasonably be put to conforming use. City of E. Chicago, Indiana v. Sinclair Refining Co. (1953) 232 Ind. 295, 111 N.E.2d 459.

Appellees successfully contended before the reviewing court that Suesses created their own hardship in razing the garage, resurfacing for parking the area thus cleared, and commencing remodeling without first having obtained the requisite zoning variance and building permit and without first having apprised himself of the use restrictions imposed by recorded covenants. That contention in effect alleges, and the court below concluded, that the hardship, if any, existent with reference to the premises concerned was created by Suesses themselves. As supporting authority for the argument, appellees cite Bd. of Zoning Appeals of City of Hammond v. Waskelo (1960) 240 Ind. 594, 168 N.E.2d 72. That decision affirmed a denial of a variance upon the ground that a claim of hardship cannot be based upon a condition created by the owner. That case is clearly distinguishable not only because it was a review of a variance denial as opposed to a variance grant (see Metropolitan Board of Zoning Appeals of Marion County, Indiana Division 2 v. Standard Life Insurance Co. (1969) Ind.App., 251 N.E.2d 60) but also because the only claimed hardship in Waskelo was occasioned by the voluntary act of the petitioner in reducing by sale the size of the area for which variance was sought. The factual situation here presented is quite different.

In the instant case the evidence disclosed that within the immediate neighborhood are Naval Avionics--an industrial facility, a shopping center, two gasoline stations, several other businesses, and an apartment complex. The evidence further indicated that because of the small size of the residence upon the premises in question and the amount of traffic on the street which fronts the premises, sale of the property for residential purposes was nearly impossible and that the house had been offered for sale for a considerable period without success until purchase by the Suesses. Such evidence places the instant case more in line with the Nelson case, supra, than with Waskelo, supra.

As stated in Devon Civic League, Inc. v. Marion County Board of Zoning Appeals (1967) 140 Ind.App. 519, 224 N.E.2d 66:

'The review by the Superior Court of Marion County is not a trial de novo and the reviewing Court cannot substitute its decision for that of the Board of Zoning Appeals. * * * The reviewing Court may not weigh the evidence submitted to the Board, nor substitute its judgment or decision for that of the Board, but can only determine whether or not there is any substantial evidence of probative value which is competent as the foundation for the decision of the Board.' 140 Ind.App. 519, 524--525, 224 N.E.2d 66, 69. See also R. J. Realty, Inc. v. Keith (1969) Ind.App., 250 N.E.2d 757; Kessler-Allisonville Civic League, Inc. v. Marion County Board of Zoning Appeals, supra.

We have readily...