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:
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:
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:
The questions presented here upon appeal are:
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:
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 test of "substantial evidence of probative value" cannot be used in reviewing every decision from a board of zoning appeals. It "* * * is too general in that it fails to appreciate the distinction between the denial and the granting of a variance." Metropolitan Board of Zoning Appeals v. Standard Life Insurance Co., supra, 18 Ind. Dec. at 564, 251 N.E. at 61. Our court stated in this case that it is not practical or realistic "* * * to require justification of a negative decision by `substantial evidence' since it is clearly the burden of petitioner for a variance to establish the existence of each of the five statutory prerequisites. In order for a board properly to deny a variance, it is not always necessary that remonstrators appear and testify or that other evidence be presented in opposition to a variance." Therefore, the judicial review of a board's decision which denies a variance is different from a board's decision which grants a variance.
The exercise of discretion is not within the judicial review. The board "* * * has wide discretion whether or not to grant a variance to a zoning ordinance, and in reviewing the Board's decision, the trial court may not substitute its discretion for that of the Board." Board of Zoning Appeals of the City of Indianapolis v. American Fletcher National Bank and Trust
When reviewing a negative decision, the reviewing court should examine each of the five statutory requirements for a variance and determine as a matter of law that each is: "* * * unequivocally present, giving wide construction to the total of the evidence introduced both before the Board and that given before the trial court, resolving all doubts in favor of the Board's determination." Board of Zoning Appeals v. American Fletcher National Bank and Trust Company, supra, 139 Ind. App. at 14, 205 N.E.2d at 324.
Our examination of the evidence presented to the Speedway Board of Zoning Appeals on May 6, 1970 shows that several remonstrators were present and that a recommendation was filed by the Metropolitan Development Department. In addition to a certain preoccupation by some of those present with the appearance, height, design and placement of a sign for the "convenience" shopping center, there were several remonstrators who testified regarding traffic congestion. Roland Rhein, a remonstrator, remarked about the hardship of a neighbor to back out of his driveway if there was additional traffic coming out of the proposed parking lot. In particular, we note the testimony of Carl Cummings before the Board:
This testimony coupled with the recommendation of the experts of the Metropolitan Development Department creates a conflict in the evidence before the Board as to requirements One and Five under the statute. The recommendation reads as follows:
This recommendation may be considered by the Board. Metropolitan Board of Zoning Appeals v. Standard Life Insurance Co., supra.
The judgment of the Marion County Superior Court, Room 2, is reversed and the cause is remanded with directions to vacate and set aside its "Special Findings of Fact, Conclusions of Law and Decree." Said court is further directed to review the decision of the Speedway Board of Zoning Appeals of Marion County in conformity with the opinions expressed herein and to make findings of facts and conclusions of law based on such review, then render judgment consistent therewith. Costs are assessed against appellee.
HOFFMAN, C.J., and SHARP and WHITE, JJ., concur.