Town of Merrillville Bd. of Zoning Appeals v. Public Storage, Inc.
| Decision Date | 28 March 1991 |
| Docket Number | No. 45A04-8911-CV-495,45A04-8911-CV-495 |
| Citation | 568 N.E.2d 1092 |
| Parties | TOWN OF MERRILLVILLE BOARD OF ZONING APPEALS, Bruce Sayers, Environ Property Owner's Association, Inc., Gainer Bank, N.A., Methodist Hospital, Inc., 84th Drive Partnership, A.J. Hayes, P.R. Unni, M.D., Raymond Lennertz, and Marv Downey, Respondents-Appellants, v. PUBLIC STORAGE, INC., Petitioner-Appellee. 1 |
| Court | Indiana Appellate Court |
Fred M. Cuppy, Kathryn D. Schmidt, Phillip A. Norman, Burke, Murphy, Costanza & Cuppy, Merrillville, for respondents-appellants.
David E. Wickland, Munster, John P. Bushemi, Merrillville, for petitioner-appellee.
Petitioner-appellee Public Storage, Inc. (Storage) sought a special exception from respondent-appellant Town of Merrillville Board of Zoning Appeals (the Board) to build a public storage facility. After hearing remonstrances from a number of residents who are also appellants in this action, the Board denied the special exception. Storage then petitioned for a writ of certiorari from the trial court, and the trial court granted the petition.
The Board now appeals, raising a sole restated issue for our review: whether the trial court's judgment was contrary to law. 2 We affirm.
Storage is the contract purchaser of a parcel of land on Broadway in Merrillville. The land was zoned Commercial C-3, and the zoning ordinance allowed public storage facilities as a special exception in the C-3 area. Storage filed an application for a special exception for a public storage facility. The Merrillville Municipal Code (the Code) provides the statutory prerequisites to the granting of a special exception:
1. The establishment, maintenance, or operation of the special use will not be 2. The special exception will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish and impair property values within the neighborhood.
detrimental to or endanger the public health, safety, morals, comfort or general welfare, and is in accordance with the comprehensive plan.
3. The establishment of the special exception will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district.
4. Adequate utilities, access roads, drainage, and/or other necessary facilities will be provided.
5. Adequate measures will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public street.
6. The special exception shall in all other respects conform to the applicable regulations of the district in which it is located and the board shall find that there is a public necessity for the special exception.
The Board held a hearing on the application. At the hearing, Storage presented evidence to show its compliance with the requirements of the Code, and a number of remonstrators, in person and by counsel, expressed their disapproval of Storage's plan. After the hearing, the Board denied the application, and Storage petitioned for and received a writ of certiorari. The Board now appeals. Additional facts will be supplied in our discussion.
This is yet another zoning case that illustrates the distinctions between applications for variances and applications for special exceptions. As this court noted in Boffo v. Boone Cty. Bd. of Zoning Appeals (1981), Ind.App., 421 N.E.2d 1119, trans. denied, a variance is a deviation from the legislated zoning classification applicable to a given parcel of land, while a special exception is a use permitted under the zoning ordinance upon the showing of certain statutory criteria. Id. at 1123. The granting of a variance is a matter committed to the discretion of boards of zoning appeal, whereas the granting of a special exception is mandatory once the petitioner shows compliance with the relevant statutory criteria. Id. See also Porter Cty. Bd. of Zoning Appeals v. Bolde (1988), Ind.App., 530 N.E.2d 1212. 3
Despite the substantive distinctions, however, the review of board decisions regarding variances and special exceptions is the same: "To reverse, there must be an abuse of discretion, or a lack of substantial evidence to support the Board's decision or an error of law in such decision." Boffo, supra, at 1125. The actions of a board are cloaked with a presumption of correctness, and neither this court nor the trial court may substitute its judgment for that of the board, though we necessarily review both the trial court's and the board's findings of fact. Porter Cty. Bd. of Zoning Appeals, supra, at 1215. Moreover, when, as here, the trial court enters specific findings of fact and conclusions of law, we determine first whether the evidence supports the findings and, second,
whether the findings support the judgment. We will not reverse the trial court unless our review of the record leaves us with the firm conviction the trial court made a mistake. Id.
Reviewing the evidence and the Board's findings in conjunction with the six elements of the Code, the record amply supports the trial court's findings and judgment that Storage met the requirements for a special exception under the Code. As we begin, we note the distinction between a board's specific findings of fact and its ultimate findings, or determinations. The determinations are the conclusions that a petitioner has or has not met the given statutory criteria. The specific findings represent the supporting basic facts upon which the determinations are based. See Porter Cty. Bd. of Zoning Appeals, supra, at 1215-16.
First, regarding the requirement that the proposed special exception be in accord with the comprehensive plan and not detrimental to health, welfare, morals, or safety, the Board determined the storage facility was in conformance with the comprehensive plan. The Board did not comment on the facility's effect on the community's health, welfare, morals, or safety, but simply found the use would be better suited in an industrial area. Indeed, no assertion was ever made that the storage facility would have an adverse effect on the community's health, welfare, morals, and safety. Accordingly, the trial court correctly judged that the Board's determination was an abuse of discretion.
Second, the Board determined Storage had failed to show the storage facility would not diminish property values. The only evidence presented to the Board, however, was that the facility's effect on neighboring property value would either be neutral or positive. The remonstrators merely expressed their worry that the facility would hurt their property; they presented no evidence to that effect. The remonstrators, of course, were not required to present any evidence, but that is not the point. Once a petitioner has established its right to a special exception by presenting sufficient evidence of compliance with relevant statutory requirements, the exception must be granted. Porter, supra; Boffo, supra.
In other words, if Storage had merely proffered testimony to the effect that it could not envision a decline in property values, it would have failed in its burden. Similarly, if the remonstrators had countered Storage's expert testimony with contrary expert testimony of their own, the resolution of the question would have been a matter for the Board, with its expertise in zoning matters, to resolve. In that case, the Board's determination, being supported by evidence, could not be reversed on review. Here, however, there was no evidence to support the Board's determination and the trial court properly found the Board's finding to be an abuse of discretion. 4
Third, Storage proved its proposed use would not impede the development of the surrounding properties for uses permitted in the district. In deciding to the contrary, the Board merely found the storage facility was not consistent with other uses in the vicinity, and that the storage facility would be more appropriately placed in an industrial area so as not to discourage office and retail development along the Broadway corridor. In making this finding, it appears the Board relied on the remonstrators' remarks
that Broadway is and should be a somewhat exclusive and picturesque street of offices and retail establishments. Record at 88, 110. As the trial court found, however, the evidence, both testimonial and photographic, reveals Broadway in the area of Storage's property is a typical urban strip, with gas stations, fast food restaurants, and doughnut shops. Indeed, the structure across the street from Storage's property is an auto tire store, which itself looks like a large warehouse. Record at 99, 113-15. Moreover, there was no evidence, to support the Board's ultimate finding that Storage's use would impede the development of surrounding property. Without supporting evidence, the Board's determination, as the trial court concluded, was an abuse of discretion.
Fourth, the Board left blank the space for its determination on the question of whether Storage had made adequate provisions for access roads, utilities, drainage, and any other necessary facilities. The Board's only specific finding on the question was "no comment." Record at 118. The evidence reveals Storage made commitments to alter its design at the request of the Merrillville Town Planning Office and to provide Merrillville with $5,000 for use in storm drainage projects. Record at 98. Additionally, Storage planned to build an access road for the facility. Record at 99. Moreover, Storage had made arrangements for landscaping, on-site security, and facade and roofing materials which conformed to the general commercial uses in the area. Record at 98-100. There was no contradictory evidence.
Normally, the...
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