Miller v. Board of Zoning Appeals of Rochester

397 N.E.2d 1091, 1979 Ind. App. LEXIS 1501

• Court: Indiana Court of Appeals
• Decided: December 20, 1979
• Docket: 3-978A219
• Status: Published

Opinions

GARRARD, Presiding Judge.

The Board of Zoning Appeals of the City of Rochester granted a variance to Thermo-gas, Inc. to permit it to conduct a liquid fertilizer sales and distribution business in conjunction with its existing liquid petroleum storage and delivery business. In granting the variance the Board imposed conditions to control potential problems concerning noise, dust and traffic.

Appellants (Miller) reside on a tract of real estate adjacent to and east of the property owned by Thermogas. They petitioned the circuit court for certiorari, and now appeal from the court’s judgment sustaining the Board. Their arguments on appeal address the sole question of whether unnecessary hardship was shown to exist.

The appeal is governed by these precepts: The determination of whether there is such unnecessary hardship as to justify the grant of a variance is a question of fact for the Board which depends upon an assessment of all relevant factors taken together. Nelson v. Bd. of Zoning Appeals (1959), 240 Ind. 212, 162 N.E.2d 449; City of East Chicago v. Sinclair Refining Co. (1953), 232 Ind. 295, 111 N.E.2d 459. Our appellate review is limited to a determination of whether the Board’s action was illegal. We may not reverse if there is evidence of probative value to support the decision. Nelson, supra; Bd. of Zoning Appeals v. Reed (1973), 157 Ind.App. 540, 301 N.E.2d 231.

The circumstances in the present case disclose that Thermogas has operated its business on the tract in question since the early 1960’s. In 1970 an area consisting of several lots on the north and south sides of State Road 14 (including the Thermogas land) was zoned as R-l, residential. Ther-mogas is at the west end of this R — 1 area. There are no improvements upon nearby real estate to the west or north. Approximately one block east of Thermogas in the R-l area is another liquid petroleum business.

At the hearing before the Board, Ther-mogas presented evidence to establish that its petroleum business was compatible with the fertilizer business and that petroleum operations alone did not yield a reasonable rate of return. A planning commissioner testified that the property should not be zoned “residential” because of its existing structures (storage tanks, pumping facilities and related buildings) and the nature of zoning in adjoining areas.

Miller relies upon Light Co., Inc. v. Houghton (1967), 141 Ind.App. 93, 226 N.E.2d 341 and similar cases to urge that economic considerations cannot control the granting or denial of variances. We do not disagree with those cases, or with the further explanation advanced therein:

“The determination of the existence of an unnecessary hardship is governed by all the relevant factors which, when taken together, indicate that the property cannot reasonably be put to a conforming use because of limitations imposed upon it by the ordinance. It must also be shown that the land involved cannot yield a reasonable return if used only for the allowed zoned purpose, and that the use authorized by the variance will not alter the essential character of the locality.”

226 N.E.2d 344.

It is at this juncture that a critical flaw emerges in Miller’s effort to demonstrate error. Most of the decisions concerning variances, and consequently the language employed by the courts, 'deal with whether the property can reasonably be used in conformity with the requirements of the zone in which it is situated. That is to say, the question would be whether Thermogas could demonstrate unnecessary hardship if it were required to use its tract for the residential purposes provided in R-l zones by the Rochester zoning ordinance. But that was not the issue. Apart from the question of whether Thermogas should be permitted to sell liquid fertilizer at this location, it was entitled to continue its petroleum business as a non-conforming use.¹

It appears to us that in this context the questions of reasonableness and hardship must in large part depend upon the rights afforded non-conforming uses under the ordinance. Cf. Jacobs v. Mishawaka Bd. Zoning Appeals (1979), Ind.App., 395 N.E.2d 834.

Millers have not, however, on appeal or at any prior point in the proceedings made any argument or showing that the Board’s action was not sustained by the evidence or was contrary to law once Thermogas’ rights to its non-conforming use under the ordinance were taken into consideration. Thermogas, of course, was entitled to such consideration, and the Board appears to have afforded it.²

We must therefore affirm the judgment since appellants have wholly failed to demonstrate reversible error.

Affirmed.

HOFFMAN, J., concurs. STATON, J., dissents and files separate opinion.

1 . We refer to the action throughout as being one for a variance since that terminology is used by the parties. The term is not necessarily inappropriate even though an alteration of a non-conforming use is at issue.

2 . The dissent urges that we should refuse to permit the expansion of non-conforming uses, citing Fidelity Trust Co. v. Downing (1946), 224 Ind. 457, 68 N.E.2d 789; Chizum v. Elkhart County Plan Comm. (1970), 147 Ind.App. 691, 263 N.E.2d 654; and O’Banion v. State ex rel. Shively (1969), 146 Ind.App. 223, 253 N.E.2d 739. We have no quarrel with those decisions but note that they concern the alteration or expansion of non-conforming uses where zoning board approval was denied or never sought. We do not believe that they preclude a zoning board from exercising its discretion in granting relief, nor do we suggest that Thermogas was entitled to relief as a matter of law.