Town of Homecroft v. Macbeth

• Citation: 148 N.E.2d 563,238 Ind. 57
• Decision Date: 17 March 1958
• Docket Number: No. 29504,29504
• Parties: The TOWN OF HOMECROFT, The Board of Zoning Appeals of the Town of Homecroft, et al., Appellants, v. Lorne C. MACBETH, Appellee.
• Court: Supreme Court of Indiana

Page 563

148 N.E.2d 563

238 Ind. 57

The TOWN OF HOMECROFT, The Board of Zoning Appeals of the Town of Homecroft, et al., Appellants, v. Lorne C. MACBETH, Appellee.

No. 29504.

Supreme Court of Indiana.

March 17, 1958.

Henry M. Coombs, Frank E. Spencer, Indianapolis, for appellants.

William F. LeMond, William B. Patrick, Indianapolis, for appellee.

EMMERT, Chief Justice.

This is an appeal from a judgment of the trial court reversing a decision of the Board of Zoning Appeals of the Town of Homecroft, Marion County, Indiana, which denied appellee's petition for a variance to erect a filling station on land owned by him in said town, and ordering the Board to issue to said appellee a building permit. No objection was made in the trial court to the form of the judgment, and the errors presented by appellants' argument section of the original brief will be considered in the order therein presented.

The Town of Homecroft was incorporated in 1950, and according to the census of that year had a population of 659 people. On May s2, 1950, the Board of Town Trustees adopted a zoning ordinance, and an official zoning map attached thereto was made a part of the ordinance.

The entire town was zoned as a dwelling house district under Class U1. Section 3 prohibited the building of a dwelling with a back yard less than 25 feet in depth, and a building closer than 8 feet from the adjoining side property line.

Appellee's real estate was located on the southeast corner of the intersection of Madison Avenue and Southview Drive, extending 100.85 feet along Southview Drive and 208.76 feet along Madison Avenue. The building setback line along Madison Avenue was 40 feet, and along Southview Drive was 50 feet. Madison Avenue, which is State Road No. 431, was 40 feet wide; immediately west of this was an abandoned interurban right-of-way 40 feet wide, and immediately west of this was Madison Drive which was 40 feet wide. Southview Drive was 50 feet wide.

Section 18(k) provided:

'A 'non-conforming use' is one that does not comply with the regulations of the use in the district, ward, or section in which it is situated. Any such non-conforming building or structure may be continued provided there is no meterial change other than necessary maintenance and repair to continue the present use. Any part of a building, structure or land occupied by such nonconforming use, which use is abandoned, shall not again be used or occupied as a non-conforming use.'

In 1933, the then owners of the land immediately east of appellee's land had constructed the present building at 6801 Madison Avenue, for a restaurant. The building was 24 feet by 32 feet over all, but appellee could only obtain 575 square feet floor space for sale and display of his groceries. In 1941 before any zoning regulations were adopted appellee had purchased the land and the building and has operated it as a grocery store. The trial court was fully warranted in finding that due to the small area of the lot and the present drift of grocery business to large supermarkets with off-street parking, the real estate was wholly unsuited for the operation of a grocery store. In 1952 appellee's business decreased 1%; in 1953 it decreased 6%; in 1954 it decreased 20%. At the time of the trial appellee's chief sales consisted of bread and milk, Coca Cola and cigarettes. At the hearings it was uncontradicted that although the objectors did not want the grocery store to discontinue business, they were not willing to patronize it in order to keep it in business.

Madison Avenue through the town extends from the sough to the north bearing to the west approximately 15 degrees. North of appellee's real estate and across Southview Drive is a Tydol filling station operated by Paul Kritch. Automobile repair work is also done at this site. State Road 431 sustains a heavy motor vehicle trafic day and night. Most of the platted area of the town is west of this state highway, and at the time of the adoption of the ordinance the south end of appellee's lot was the southern boundary of the town. From the record it is not clear that the Tulip Drive area south of appellee's land has been annexed, but for the purposes of this opinion it will be assumed that it has. There were pictures introduced in evidence of the Tydol filling station and the residence properties immediately east and south of appellee's lot. There were also introduced illustrations of a proposed cottage type filling station to be erected by the Pure Oil Company in the event a variance could be obtained.

In 1952 appellee had the lot listed for sale with the Studebaker Realty Company for 9 months; thereafter it was listed for sale by the Shine Realty Company. During all this time there was no offer received to purchase the real estate for a grocery business, none for a residence, and only one offer, which was reduced to an option, to buy the real estate for $17,000, made by the Pure Oil Company for the construction of a cottage type filling station.

The evidence is uncontradicted that filling stations erected and operated in conformity with the regulations of the State Fire Marshal's office do not increase the insurance rates of surrounding properties. Of the approximately 500 filling stations operated in Indianapolis there is less than one fire per month on an average.

The transcript was made of all the evidence and proceedings taken before the Board of Zoning Appeals, which was introduced in evidence at the hearing in the trial court. The objecting property owners at the hearing before the Board of Zoning Appeals made statements concerning their opinions that a filling station would depreciate the value of their property. None of them offered to rebut the evidence introduced by appellee that the refusal of a variance under the existing circumstances constituted an undue hardship on him by depriving him of the use of his property to such an extent that it became a taking of his property without compensation. The determination of a petition for a variance cannot be determined by a poll of the sentiment of the neighborhood. Benner v. Tribbitt, 1947, 190 Md. 6, 57 A.2d 346. ¹

Paragraph 16 of the petition for the writ of certiorari did not charge the zoning ordinance was void in its entirety, but asserted that it was invalid and unconstitutional as it affected his property under the existing circumstances. Appellee properly sought his remedy by petition for a variance before the Board of Zoning Appeals. City of East Chicago, Indiana v. Sinclair Ref. Co., 1953, 232 Ind. 295, 111 N.E.2d 459, and authorities therein cited. As we said in that case at page 309 of 232 Ind., at page 465 of 111 N.E.2d 'Each case must be determined on its own merits.'

Zoning when done in a constitutional manner is a proper exercise of the police power of the state. ² Euclid, Ohio v. Ambler Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. When it is done by a political subdivision of the state, it must be done pursuant to the statute which authorizes it. But it is also apparent that the power to restrict the uses of private property under the police power should be exercised with caution, and that when the power in the first instance is vested in municipal officers, who are not trained in the history and traditions of the law, and who may be particularly subject to personal and political considerations, there exists grave danger that owners may be deprived of their constitutional rights in the use of their property. The same dangers exist in this field as were noted by the Supreme Court of the United States in St. Joseph Stock Yards Co. v. United States, 1936, 298 U.S. 38, 51, 52, 56 S.Ct. 720, 80 L.Ed. 1033, 1041, 1042. When an issue is presented by an owner that there has been an unlawful taking of his property without just compensation in violation of § 21 of Article 1 of the Indiana Constitution and in violation of the due process clause of the Fourteenth Amendment, it is for the courts to protect ultimately the owner's rights and decide the judicial question presented. In compliance with these constitutional requirements the Zoning Act of 1947, § 53-778, Burns' 1951 Replacement, subsection 4, empowered the Board of Zoning Appeals to 'Authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.' In order to obtain a judicial review §§ 53-783 to 53-788, Burns' 1951 Replacement, provided for a review of the decision of the Board of Zoning Appeals by writs of certiorari.

Appellants' first assertion of error involves the question of notice to bring the parties before the trial court in the proceedings had to obtain the writ of certiorari. It arises out of an ambiguity apparent when § 53-784, Burns' 1951 Replacement, is construed with § 53-785, § 53-787 and § 53-788, Burns' 1951 Replacement. We will construe a statute to prevent an absurdity. Helms v. American Security Co., 1939, 216 Ind. 1, 22 N.E.2d 822; State ex rel. Glenn v. Smith, 1949, 227 Ind. 599, 87 N.E.2d 813. Where different parts of a statute are in irreconcilable conflict, the later in position will control. Cox v. Timm, 1914, 182 Ind. 7, 105 N.E. 479; Woodring v. McCaslin, 1914, 182 Ind. 134, 104 N.E. 759. Where it is clear that words have been omitted which are necessary to make the statute workable and to give it complete sense, such may be read into the act to express the true legislative intent. State ex rel. 1625 East Wash. Realty Co. v. Markey, 1937, 212 Ind. 59, 7 N.E.2d 989.

Under § 53-784, Burns' 1951 Replacement, the Board of Zoning Appeals is not an adverse party. But § 53-785, Burns' 1951 Replacement, makes it quite clear it is a necessary party, or the...