Vogelgesang v. Shackelford, 1068

• Decision Date: 12 January 1970
• Docket Number: No. 1068,No. 1,1068,1
• Citation: 254 N.E.2d 205,146 Ind.App. 248,20 Ind.Dec. 50
• Parties: F. Ross VOGELGESANG, Executive Director of the Metropolitan Planning Department of Marion County, Indiana, Louise Crodian, Robert T. Herman, Norma J. Herman, J. Edward Tether, Susanne Tether, David R. Johnson, Mary L. Johnson, Ray Churchman, and Carolyn Churchman, Appellants, v. Richard L. SHACKELFORD, Georgea Shackelford, Metropolitan Board of Zoning Appeals, Division IV, consisting of: J. W. Chittenden, Acting Chairman, R. J. Cook, Acting Secretary, R. E. Bingman, and T. R. Hallowell, Appellees. A 178
• Court: Indiana Appellate Court

Page 205

254 N.E.2d 205

146 Ind.App. 248

F. Ross VOGELGESANG, Executive Director of the Metropolitan Planning Department of Marion County, Indiana, Louise Crodian, Robert T. Herman, Norma J. Herman, J. Edward Tether, Susanne Tether, David R. Johnson, Mary L. Johnson Ray Churchman, and Carolyn Churchman, Appellants, v. Richard L. SHACKELFORD, Georgea Shackelford, Metropolitan Board of Zoning Appeals, Division IV, consisting of: J. W Chittenden, Acting Chairman, R. J. Cook, Acting Secretary R. E. Bingman, and T. R. Hallowell, Appellees.

No. 1068 A 178.

Appellate Court of Indiana, Division No. 1.

Jan. 12, 1970.

Norman R. Newman, Indianapolis, for appellants.

Albert M. Gavit, Daniel E. Johnson, Baker & Daniels, Indianapolis, for appellees.

LOWDERMILK, Chief Justice.

This action was a statutory certiorari proceeding for judicial review of a decision of the Metropolitan Board of Zoning Appeals of Marion County, Indiana, Division 4, granting a variance of use for the erection of a commercial building for use as a grocery store on certain real estate owned by appellees Richard L. Shackelford and Georgea Shackelford, located at 4836 East 56th Street, Indianapolis, Indiana. The action was commenced by appellant F. Ross Vogelgesang, Executive Director of the Metropolitan Planning Department of Marion County, Indiana, pursuant to Burns' Ind.Stat.Anno., § 53--974, and thereafter other appellants intervened as interested property owners and remonstrators.

The sole issue before the trial court was to determine the legality of the decision of the Metropolitan Board of Zoning Appeals of Marion County, Indiana, Division 4, on the facts set forth in the Return to the Writ of Certiorari and the supplemental evidence introduced in the trial of the cause, all as provided in Burns' Ind.Stat.Anno., § 53--979.

Trial was had before the court upon appellant Vogelgesang's said petition for a writ of certiorari, the appellee's verified return thereto containing the originals of all papers, pleadings and documents filed with or introduced before the Board of Zoning Appeals and all proceedings in connection with appellee's variance petition. Supplemental evidence was heard, pursuant to appellee's motion therefor.

The court thereafter entered its findings of fact, conclusions of law and judgment thereon, affirming the decision of the Board of Zoning Appeals and thereby confirmed the grant of variance.

The findings of fact, conclusions of law and judgment (omitting caption, formal parts and description of real estate) read as follows, to-wit:

'This matter was heard on the 18th day of June, 1968, upon the verified petition for writ of certiorari filed herein by F. Ross Vogelgesang, Executive Director of the Metropolitan Planning Department of Marion County, Indiana.

'And the Court having examined the verified return to the writ of certiorari and having duly considered certain supplemental evidence introduced by the parties hereto, makes the following findings of fact and conclusions of law thereon:

'1. The defendants Richard L. Shackelford and Georgea Shackelford are the owners of the property in dispute. Such real estate is vacant and is described as follows:

(H.I.)

Such real estate is zoned D--2 under the Dwelling District Zoning Ordinance of Marion County, Indiana, and such classification restricts the use of such real estate to use for single-family dwelling purposes.

'2. On the 9th day of January, 1968 such defendants, in Cause No. 67--V4--241, were granted variances to permit the construction and operation of a convenience food store upon the above described real estate by the Metropolitan Board of Zoning Appeals, Division IV. Such case was originally heard at an earlier meeting of such Board of Zoning Appeals held December 12, 1967, at which meeting a tie vote on the requested variances resulted in a continuance of the hearing of such case until the meeting held January 9, 1968.

'3. Following the granting of such variances, F. Ross Vogelgesang, Executive Director of the Metropolitan Planning Department of Marion County, Indiana, filed with this Court his verified petition for writ of certiorari. On February 7, 1968, the Court entered its order allowing the remaining plaintiffs in this case to intervene.

'4. At the meeting of such Board of Zoning Appeals held January 9, 1968, said Board of Zoning Appeals made the following written determination with respect to the variances granted.

'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.'

'5. There was sufficient evidence before such Board of Zoning Appeals to support the above described written determination.

'6. The rules and procedure of the Metropolitan Board of Zoning Appeals provide that a petitioner for a variance shall mail notice of the hearing on the request to adjoining landowners, by registered or certified mail, at least 15 days prior to the date of the hearing. Such rules further provide for the filing of a verified proof of such mailing, such proof to be filed with the Board not less than 15 days prior to the meeting at which the case is to be heard. In the present case, said verified proof of mailing, reciting the mailing of such notices more than 15 days prior to the date of the frist hearing of this case on December 12, 1967, was filed with the Board of Zoning Appeals 13 days prior to December 12, 1967. It was filed more than a month prior to the hearing on January 9, 1968, at which the case was heard again and the variances in question were granted. No objection was made at either of such meetings of the Board of Zoning Appeals concerning the time of filing of such proof of service. Neither the plaintiff in this case nor any of the intervening petitioners has alleged or shown that he was in any manner prejudiced by the failure to file such proof of service at least 15 days before said hearing on December 12, 1968. There has been no allegation or showing that any person who was to receive notice of such hearing under the rules of said Board of Zoning Appeals failed to get proper notice of such proceedings.

'7. No variances were granted by said Board of Zoning Appeals other than variances requested in the verified petition filed with said Board of Zoning Appeals by the defendants Richard L. Shackelford and Georgea Shackelford.

'8. The evidence and facts in this case are with the defendants and against the plaintiff and the intervening petitioners, and the construction and operation of said convenience food store in accordance with the variances granted by said Board of Zoning Appeals should be permitted.

'And, as conclusions of law upon the facts above found, the Court concludes:

'1. Such decision of the Metropolitan Board of Zoning Appeals, Division IV, is not illegal, either in whole or in part.

'2. The law in this case is with the defendants and against the plaintiff and the intervening petitioners, and the construction and operation of such convenience food store in accordance with the variances granted by the Metropolitan Board of Zoning Appeals, Division IV, should be permitted.

'IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the decision of the Metropolitan Board of Zoning Appeals, Division IV, appeal(ed) from in this action is legal and proper, and such decision is hereby wholly confirmed, and it is further ORDERED and DECREED that the plaintiff and the intervening petitioners to pay the cost herein.'

Appellants raised the question that the original petition for variance had been amended without the amendment being authenticated and to this question the trial court determined, and we think correctly so, that the so-called amendments were notes of a clerk of the Zoning Board, for the convenience of the Zoning Board only, and not an amendment of the petition.

Appellants next contend that the verified proof of mailing of notices showed that the first hearing was less than 15 days, when the requirement of notice was a full 15 days. The trial court adequately covered this proposition in special finding number 6, supra, and in which the court showed that actually the petition was filed more than a month before the date of the hearing and further, no objection was filed thereto, and that all interested parties were notified. It is the opinion of this court that the notice was adequate and that any objection thereto was waived by the parties in their appearance. Certainly, no one was prejudiced in any manner by the failure to filed such proof of service at least 15 days before the hearing date on December 12, 1968.

The trial court, in its special finding of fact number 4, said:

'4. At the meeting of such Board of Zoning Appeals held January 9, 1968, said Board of Zoning Appeals made the following written determination with respect to the variances granted.

'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...