PIVARNIK, Justice.
This cause comes to us on a petition to transfer from the Fourth District Court of Appeals. Transfer is sought by, Appellants in the Court of Appeals, who were Defendants in the trial court. Appeal was consolidated challenging the constitutionality of amortization provisions in the zoning ordinances of two different counties, both of which require the discontinuance of pre-ex-isting lawful non-conforming uses of real estate upon the expiration of a specific number of years. After injunctions were issued against Appellants Ralph and Elizabeth Ailes and Rouse, enjoining them from [1058]*1058operating junkyards at their residences, both the Aileses and Rouse brought independent Motions in their own counties for relief from their respective judgments pursuant to Ind.R.Tr.P. 60(B), alleging the applicable amortization provision constituted an unconstitutional taking of property and an unreasonable exercise of police power. Both Motions were denied and the parties appealed, raising only the constitutional issue for appellate consideration. Transfer is granted, the opinion of the Court of Appeals is vacated, and the judgments of the trial courts are reversed.
Both appeals were brought on agreed statements of the records and the facts in both cases are undisputed. The Court of Appeals properly set out the facts pertinent to the issue which we adopt for purposes of this opinion as follows:
"FACTS
Both appeals come before us on agreed statements of the records, pursuant to Ind.Rules of Procedure, Appellate Rule 7.3. The facts in both causes are undisputed. The Aileses' real estate, on which they also resided, had been used as a junkyard and automobile wrecking yard since 1967 or 1968, before the effective date of the Decatur County zoning ordinance enacted in 1975 and continued uninterrupted until the date of suit in 1979. In 1975, Decatur County zoned an area, which included the Aileses' residence, for one and two family residences only and prohibited the maintenance of junkyards (Footnote omitted) or automobile wrecking yards (Footnote omitted) within that district. The Aileses do not dispute the use of théir real estate in the current manner is proscribed by the ordinance, and the trial court so found. (Footnote omitted.) The trial court also found the use of the real estate constituted a lawful nonconforming use which should have been abated within three years of the ordinance's enactment in 1975 under the following amortization provisions:
'8.28. Any nonconforming use of land not involving any structure, ... may be continued for a period not to exceed three years after enactment of the ordinance, whereupon such nonconforming use shall cease or structure shall be removed.
3.24. Any building or structure devoted to a nonconforming use with a fair market value of less than $500.00 as determined by the Board of Appeals, may be continued for a period not to exceed three years after enactment of the ordinance, whereupon such nonconforming use shall cease and thereafter such building or structure shall be removed or changed to a conforming use.'
On September 18, 1979 the trial court therefore issued an injunction against the use of the property as a junkyard and ordered removal of the offending materials. The Aflleses moved for relief from the judgment challenging the constitutionality of the amortization provisions. The trial court overruled their motion. On appeal, both parties state there is no issue of fact but only an issue of law which questions whether an amortization provision eliminating a 'non-conforming, pre-existing, - uninterrupted, - otherwise lawful use' of real estate is a taking of property without due process and an unreasonable exercise of police power.
Rouse's appeal presents a similar record. Rouse began using his residential real estate as a junkyard in approximately 1953. In 1970, Ripley County zoned the district including Rouse's real estate for medium density single and two-family residences, where junkyards (Footnote omitted) are not permitted. Rouse does not challenge the trial court's finding that he is maintaining a junkyard in violation of the ordinance, nor does he challenge the applicability of the following amortization provision contained in Section 8.5 of the ordinance:
'The lawful use of a building or premises existing at the time of passage of the ordinance, may be continued although such use does not conform to all the provisions of this ordinance or amendments to this ordinance except as hereinafter provided. |
[1059]*1059
(g) Any nonconforming open use of land shall be discontinued within (5) years from the date of passage of this ordinance.' [Footnote omitted].
On August 8, 1978 the trial court issued an injunction ordering removal of all junked equipment and automobiles from Rouse's real estate. Rouse moved for relief from the judgment alleging the amortization provision was unconstitutional. The trial court's subsequent finding that the challenged provision was not an unconstitutional taking of property without due process of law is the only question raised in Rouse's appeal."
Appellant-Petitioners Ailes and Rouse challenge the respective amortization provisions as an unconstitutional taking of property and as an unreasonable exercise of police power. Petitioners are correct on this issue.
The precise issue of amortization as a means of phasing out non-conforming uses by zoning regulation has not been directly addressed in this jurisdiction. In approving less drastic measures of phasing out, however, strong inferences have been made that such a direct approach would not be acceptable. _ Metropolitan - Development Commission of Marion County v. Marianos, (1980) Ind., 408 N.E.2d 1267; Misner v. Presdorf, (1981) Ind.App., 421 N.E.2d 684, transfer denied; Jacobs v. Mishawaka Board of Zoning Appeals, (1979) Ind.App., 395 N.E.2d 834, trans. denied; Dandy Co., Inc. v. Civil City of South Bend, (1980) Ind.App., 401 N.E.2d 1380.
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PIVARNIK, Justice.
This cause comes to us on a petition to transfer from the Fourth District Court of Appeals. Transfer is sought by, Appellants in the Court of Appeals, who were Defendants in the trial court. Appeal was consolidated challenging the constitutionality of amortization provisions in the zoning ordinances of two different counties, both of which require the discontinuance of pre-ex-isting lawful non-conforming uses of real estate upon the expiration of a specific number of years. After injunctions were issued against Appellants Ralph and Elizabeth Ailes and Rouse, enjoining them from [1058]*1058operating junkyards at their residences, both the Aileses and Rouse brought independent Motions in their own counties for relief from their respective judgments pursuant to Ind.R.Tr.P. 60(B), alleging the applicable amortization provision constituted an unconstitutional taking of property and an unreasonable exercise of police power. Both Motions were denied and the parties appealed, raising only the constitutional issue for appellate consideration. Transfer is granted, the opinion of the Court of Appeals is vacated, and the judgments of the trial courts are reversed.
Both appeals were brought on agreed statements of the records and the facts in both cases are undisputed. The Court of Appeals properly set out the facts pertinent to the issue which we adopt for purposes of this opinion as follows:
"FACTS
Both appeals come before us on agreed statements of the records, pursuant to Ind.Rules of Procedure, Appellate Rule 7.3. The facts in both causes are undisputed. The Aileses' real estate, on which they also resided, had been used as a junkyard and automobile wrecking yard since 1967 or 1968, before the effective date of the Decatur County zoning ordinance enacted in 1975 and continued uninterrupted until the date of suit in 1979. In 1975, Decatur County zoned an area, which included the Aileses' residence, for one and two family residences only and prohibited the maintenance of junkyards (Footnote omitted) or automobile wrecking yards (Footnote omitted) within that district. The Aileses do not dispute the use of théir real estate in the current manner is proscribed by the ordinance, and the trial court so found. (Footnote omitted.) The trial court also found the use of the real estate constituted a lawful nonconforming use which should have been abated within three years of the ordinance's enactment in 1975 under the following amortization provisions:
'8.28. Any nonconforming use of land not involving any structure, ... may be continued for a period not to exceed three years after enactment of the ordinance, whereupon such nonconforming use shall cease or structure shall be removed.
3.24. Any building or structure devoted to a nonconforming use with a fair market value of less than $500.00 as determined by the Board of Appeals, may be continued for a period not to exceed three years after enactment of the ordinance, whereupon such nonconforming use shall cease and thereafter such building or structure shall be removed or changed to a conforming use.'
On September 18, 1979 the trial court therefore issued an injunction against the use of the property as a junkyard and ordered removal of the offending materials. The Aflleses moved for relief from the judgment challenging the constitutionality of the amortization provisions. The trial court overruled their motion. On appeal, both parties state there is no issue of fact but only an issue of law which questions whether an amortization provision eliminating a 'non-conforming, pre-existing, - uninterrupted, - otherwise lawful use' of real estate is a taking of property without due process and an unreasonable exercise of police power.
Rouse's appeal presents a similar record. Rouse began using his residential real estate as a junkyard in approximately 1953. In 1970, Ripley County zoned the district including Rouse's real estate for medium density single and two-family residences, where junkyards (Footnote omitted) are not permitted. Rouse does not challenge the trial court's finding that he is maintaining a junkyard in violation of the ordinance, nor does he challenge the applicability of the following amortization provision contained in Section 8.5 of the ordinance:
'The lawful use of a building or premises existing at the time of passage of the ordinance, may be continued although such use does not conform to all the provisions of this ordinance or amendments to this ordinance except as hereinafter provided. |
[1059]*1059
(g) Any nonconforming open use of land shall be discontinued within (5) years from the date of passage of this ordinance.' [Footnote omitted].
On August 8, 1978 the trial court issued an injunction ordering removal of all junked equipment and automobiles from Rouse's real estate. Rouse moved for relief from the judgment alleging the amortization provision was unconstitutional. The trial court's subsequent finding that the challenged provision was not an unconstitutional taking of property without due process of law is the only question raised in Rouse's appeal."
Appellant-Petitioners Ailes and Rouse challenge the respective amortization provisions as an unconstitutional taking of property and as an unreasonable exercise of police power. Petitioners are correct on this issue.
The precise issue of amortization as a means of phasing out non-conforming uses by zoning regulation has not been directly addressed in this jurisdiction. In approving less drastic measures of phasing out, however, strong inferences have been made that such a direct approach would not be acceptable. _ Metropolitan - Development Commission of Marion County v. Marianos, (1980) Ind., 408 N.E.2d 1267; Misner v. Presdorf, (1981) Ind.App., 421 N.E.2d 684, transfer denied; Jacobs v. Mishawaka Board of Zoning Appeals, (1979) Ind.App., 395 N.E.2d 834, trans. denied; Dandy Co., Inc. v. Civil City of South Bend, (1980) Ind.App., 401 N.E.2d 1380. Typically the provisions of the zoning ordinances upheld in those cases and generally approved by this Court and the Court of Appeals allowed a use which was non-conforming to the area to continue with the limitations that exercise of the use could not be expanded or increased beyond its status at the time of the passage of the ordinance, exercise of the use could not be reinstated after there was an abandonment of it in the area by the original user or one successor to it, destruction of the enclosure housing the exercise of the use such as destruction by fire, authorized replacement again to the level existing at the time of enactment of the ordinance and in some cases replacement of that particular non-conforming use with another non-conforming use that fell in the same class of uses as the original non-conforming use. By this method there was a gradual phasing out of non-conforming uses without taking from the user the right to exercise a use that was lawful prior to the enactment of the ordinance so long as all of the conditions and limitations were met. Metropolitan Development Commission, supra; Jacobs, supra; Misner, supra.
In Jacobs, the Court of Appeals, in discussing the methods of phasing out nonconforming uses by municipalities in their zoning ordinances, stated:
"Zoning ordinances contain provisions exempting existing non-conforming uses from the use restrictions because the right of a municipality to enact zoning restrictions is subject to the vested property interest acquired prior to the enactment of the zoning ordinances. An ordinance prohibiting any continuation of an existing lawful use within a zoned area is unconstitutional as a taking of property without due process of law and as an unreasonable exercise of police power."
Jacobs, 395 N.E.2d at 836.
As the Court of Appeals pointed out in Jacobs, a number of jurisdictions have taken this position and have found amortization provisions in zoning ordinances respecting non-conforming uses are unconstitutional per se.
The Court of Appeals points out in the instant case that though there is a divergence of opinion among the various jurisdictions, the greater weight of authority supports the use of amortization provisions if they are reasonable, usually weighing the private loss against the public gain in each case. See Annot., 22 A.L.R.3rd 1134 §§ 3 & 4 (1968 and Supp.1981) and cases cited therein. The factors to be considered in those approving amortization appear to be the length of time given to phase out the use, the type of business or endeavor exercised, and the nature of the business or use [1060]*1060and its relationship to the neighborhood or area involved. From a constitutional standpoint, it does not appear that a resolution of any of these factors can make that reasonable which is basically and from the outset unreasonable. We must bear in mind that we are dealing with a use of a person's private property that was continuing and lawful at the time of the passage of the ordinance. It became unlawful only by reason of the provisions of the ordinance. The nature of the business, its relationship to the rest of the area, the method in which it is run, its potential success or failure based on the income or lack thereof, are irrelevant considering the narrow issue drawn in the facts before us.
It was suggested in both of the cases involving the Aileses and Rouse, that their premises were nothing more than junk piles, that it was questionable if any business was conducted there since there was little evidence of any income to them, that they represented a blight on the community and the loss to them would be negligible compared to the gain of the public in general and more particularly their neighbors. These factors could not be considered in this issue. These actions in both cases of the Aileses and Rouse were brought only for enjoining zoning ordinance violations and were based solely upon allegations that Appellants' use of their real estate was in violation of the provisions of the zoning ordinances. There is no allegation nor implication in these causes that the real estate of either of the Appellant-Petitioners here constituted a nuisance. As Petitioners point out, the complaints contain absolutely no allegations that Appellants' use of their real estate jeopardize the health and safety of their neighbors and therefore constituted a nuisance or in any other manner constituted a nuisance. If either community of Decatur County or Ripley County has evidence that the use of the properties of the Aileses and Rouse constitute a nuisance, a blight, or a danger to the health and safety of the community, they have open to them the remedy of pursuing enjoining of petitioners' activities as a nuisance. That issue is not before us here.
As we consistently have held, it is permissible for a community to provide in its zoning ordinances that the lawful use of land that exists at the time of the passage of the ordinance is no longer permissible under the terms of the ordinance, may be continued subject to the provisions that no non-conforming use shall be enlarged or increased or extended to occupy a greater area of land than was occupied at the effective date or adoption of the ordinance or amendment, that once abandoned, the use may not be reinstated or the use may be replaced by one of the same or similar nature and not more restrictive than the use employed. We hold, however, that an ordinance prohibiting any continuation of an existing lawful use within a zoned area regardless of the length of time given to amortize that use is unconstitutional as the taking of property without due process of law and an unreasonable exercise of the police power. The opinion of the Court of Appeals is vacated, and the judgments of the trial courts are reversed with instructions to the trial courts to vacate the respective injunctions and orders against the petitioners and enter judgment in favor of these petitioners.
GIVAN, C.J., and PRENTICE, J., concur.
DeBRULER, J., concurs in result with separate opinion.
HUNTER, J., dissents with opinion.