Metropolitan Development Commission v. Marianos

401 N.E.2d 28, 74 Ind. Dec. 270, 1979 Ind. App. LEXIS 1523
CourtIndiana Court of Appeals
DecidedNovember 7, 1979
DocketNo. 2-278A44
StatusPublished
Cited by1 cases

This text of 401 N.E.2d 28 (Metropolitan Development Commission v. Marianos) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Metropolitan Development Commission v. Marianos, 401 N.E.2d 28, 74 Ind. Dec. 270, 1979 Ind. App. LEXIS 1523 (Ind. Ct. App. 1979).

Opinion

MEMORANDUM DECISION

SHIELDS, Judge.

The Metropolitan Development Commission of Marion County (MDC) appeals from the trial court’s denial of its prayer for injunctive relief against certain commercial uses of industrially zoned property leased by George Marianos, doing business as George’s Garage.

The facts are as follows:

In 1969 Marianos leased property located at 748 Kentucky Avenue, Indianapolis, Indiana from Frank’s Brake Service, Inc. The property was previously used, originating in the 1940’s, as a gasoline service station and repair garage. When Marianos’ gasoline supplier, Gulf Corporation, ceased doing business in Indiana, the primary business of the property became automobile salvage and automobile repair.

Since 1963 the property in question has been zoned I-4-U by the Industrial Zoning [29]*29Ordinance of Marion County. The I-4-U district is an industrially “zoned district which allows for certain enumerated less intensive uses. However, the I-4-U district does not permit gasoline stations, automobile repair garages, or automobile salvage operations. Marianos did not dispute his noncompliance with the ordinance. Rather, he asserted the affirmative defense of a nonconforming use.

At the request of Marianos and pursuant to Indiana Rules of Procedure, Trial Rule 52, the trial court made the following special findings and conclusions:

FINDINGS OF FACT

1. The Metropolitan Development Commission of Marion County, Indiana, is a governmental entity created by Chapter 173 of the Acts of the Indiana General Assembly for the year 1969 and exercises all powers conferred upon the Metropolitan Plan Commission of Marion County by Chapter 283 of the Acts of the Indiana General Assembly for 1955, as amended.
2. The Defendant, George Marianos, is presently doing business as George’s Garage upon the following described real estate commonly referred to as 748 Kentucky Avenue, Indianapolis, Indiana:
Part of Out Lots 130 and 132 of the Donation Lands of the City of Indianapolis, specifically; Beginning at the intersection of the Northwest line of Kentucky Avenue and the south line of Oliver Street, west on and along the south line of Oliver Street 162.64 feet, thence south 191.97 feet to a point on the northwest line of Kentucky Avenue, thence northeast on and along the northwest line of Kentucky Avenue 236.17 feet to the point of beginning.
3. Said real estate is owned by Frank’s Brake Service, Inc., an Indiana Corporation, not a party to these proceedings.
4. The Defendant occupied said premises prior to 1969, and conducted operations which he has continued to conduct to this day, including repairs of motor vehicles, storage and overhauling of cars.
5. Said real estate is zoned I-4-U by the Industrial Zoning Ordinance of Marion County, Indiana.
6. The Defendant conducts his garage business upon said premises and makes his livelihood on a full-time basis working seven days a week.
7. Defendant has operated his business prior to the passage of the Act which created the Plaintiff.
8. To enjoin Defendant from conducting his operations upon said premises would deprive Defendant of a livelihood and would deny Defendant the rights guaranteed him by the Indiana and Federal Constitutions.
9. Across the street from the subject real estate is Hetherington & Berner, an empty building formerly a foundry.
10. Across the street and not far from the subject real estate is an empty building, formerly an abattoir used by Stark & Wetzel in the killing of livestock.
11. Within two blocks of the property is Diamond Chain, a heavy industrial factory.
12. Within three blocks of the property Indianapolis Power and Light Company maintains a large power generating plant.
13. There has' always been a junk yard within four blocks of the property.

CONCLUSIONS OF LAW

1. The Court has jurisdiction of the parties and of the subject matter.
2. There is no duty upon the Defendant to maintain his business upon said real estate for the use and benefit of the Plaintiff or for the use and benefit of his neighbors at his expense.
3. The Defendant is,allowed to make reasonable use of his real estate and such use is compatible with the uses made by Defendant for many years.
4. The use which Defendant makes of his property precedes the passage of the Act and entitles Defendant to the Grandfather’s Clause privileges.
[30]*305. There is no duty upon the part of Defendant to provide at his expense a visual corridor in order to please Plaintiff or his neighbors.
6. The law is with the Defendant and against the Plaintiff and the Court is without jurisdiction to grant the injunc-tive relief sought by the Plaintiff as it violates the constitutional rights of Defendant.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the injunction sought by Plaintiff is hereby denied and that the costs herein be assessed against Plaintiff.

On appeal MDC argues the decision of the trial court is contrary to law. Specifically, it contends the findings are insufficient to warrant the trial court’s conclusion granting Marianos protection under the “Grandfather Clause.” 1

We reverse and remand.

As stated, pursuant to a T.R. 52 request of Marianos, the, trial court made special findings and conclusions. Findings will be construed together and will be liberally construed in support of the judgment. In re Marriage of Miles, (1977) Ind.App., 362 N.E.2d 171, 174; Scott v. Kell, (1956) 127 Ind.App. 472, 134 N.E.2d 828. However, it also has been generally held that nothing can be added to a special finding of fact by presumption, inference or intendment. Blake v. Hosford, (1979) Ind.App., 387 N.E.2d 1335, 1338; Cook v. Michigan Mutual Liability Co., (1972) 154 Ind.App. 346, 289 N.E.2d 754.

The trial court concluded Marianos had a legally established nonconforming use. Section 2.00 of the ordinance specifically excepts “legally established non-conforming uses” from zoning requirements, although it does not define the term. Nonconforming use is a term of art in zoning law applied to land uses that are:

permitted by zoning statutes or ordinances to continue notwithstanding similar uses are not permitted in the area in which they are located. A non-conforming use has been defined as the use of a building or land that does not agree with the regulations of the district in which it is situated.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wesner v. METROPOLITAN DEVELOPMENT COM'N OF MARION CTY.
609 N.E.2d 1135 (Indiana Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
401 N.E.2d 28, 74 Ind. Dec. 270, 1979 Ind. App. LEXIS 1523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-development-commission-v-marianos-indctapp-1979.