120 Ind. App. 240 | Ind. Ct. App. | 1950
— The appellee is the owner of an apartment building in Indianapolis, Indiana, known as 802-808 East Main Street, erected upon a lot in Jackson Dawson’s Broad Ripple Addition to said city which has a frontage of 58 feet on the street and is 129 feet in depth. Said building contains four housing units of five rooms and bath each and is now and has been since 1942, controlled housing under the terms of the Federal Emergency Control Act of that year, as amended and extended from time to time. On March 27, 1948, the appellant occupied one of the apartments in said building as a tenant from month to month. On said day the appellee caused a written notice to quit to be served on the appellant in which it is stated: “The owner herein desires to remodel the premises and such remodeling work will make the premises untenable while it is being carried forward.” The appellant refused to vacate and suit for possession was filed June 17, 1948. There was a trial to the court, a finding for the appellee and judgment for possession. As grounds for reversal the appellant contends that the evidence is insufficient to sustain such decision because it fails to show that the appellee’s proposed remodeling project was approved by the Indianapolis board of zoning appeals and the commissioner of buildings of said city before he commenced and maintained this suit.
The Federal Housing and Rent Act of 1947, as amended in 1948, provides as follows: “No action . . .
“Local Laws” pertinent to the subject are the building and zoning ordinances of the city of Indianapolis. The building ordinance provides that before the alteration of any building in the city is undertaken a detailed statement and copy of the specifications therefor shall be submitted to the commissioner of buildings together with two full and complete copies of the plans, certified plat survey and lot plan of said work and two sets of structural drawings showing- data of various kinds, the recital of which in detail we deem unnecessary to the purpose at hand. Certain blueprints in duplicate are required, one set of which shall remain in the office of the bureau of buildings and if approved shall be so stamped by the commissioner. The city controller may then issue a permit for the work to be done. Municipal Code of Indianapolis, 1925 Revision, §§ A-201 to A-207, p. 273. Said zoning ordinance establishes “area districts” in each of which the maximum housing capacity of a building is limited by the area of the lot upon which it stands. Class A4 of said area districts, wherein the appellee’s lot is classified, provides “that no building shall be erected or altered to accommodate or make provision for more than one family for each 1200 square feet of the area of the
Careful examination of the record discloses that the appellee, in the latter part of February or early part of March, 1948, a few weeks before he notified the appellant to vacate, called on the commissioner of buildings of the city of Indianapolis and exhibited a sketch of the proposed remodeling project upon which was indicated the square foot area of the lot involved and the type of construction of the building and the alterations thereto he desired to make and was told by said commissioner that if the project was carried out in accordance with said sketch all of the requirements of his office would be met. Nothing was filed with the commissioner and no record of the transaction was made or appears in his office or the office of the bureau of buildings. The appellee’s remodeling project contemplated the conversion of four apartments into eight, thereby accommodating more families on his lot area than the zoning ordinance permits. If the project was to be carried out a variance of the terms of said ordinance was necessary and realizing this the appellee filed an application for such variance with the board of zoning appeals which was refused on August 23, 1948. In the meantime he had filed this suit to dispossess the appellant and, despite the fact that the only assigned justification for eviction had been disapproved by said board, he prosecuted the same to successful judgment.
Clearly the informal interview the appellee had with the building commissioner does not satisfy the provisions of the building ordinance. Said commissioner is a public officer whose official act can be established only by the records of his office. City of Garrett v. Winterieh (1909), 44 Ind. App. 322,
The appellee next contends that the procuring of a building permit, as a condition precedent to his right to evict the appellant, would be a useless pro-' cedure as any such permit would expire, under the provisions of the local building ordinance, long before his suit for possession could be determined. As we understand the law it is the formal approval of the appellee’s plans by the building commissioner, as evidenced by his records, and not the issuance of a permit by the controller, that is vital to his cause of action. After having procured the approval of the commissioner in the manner contemplated by the building ordinance, the issuance of the permit could await, the outcome of his suit for possession.
In our opinion the evidence is insufficient to sustain the court’s decision and therefore the judgment is reversed. It is apparent that the appellee, if granted a new trial, could not establish compliance with local law as a condition precedent
Note. — Reported in 91 N. E. 2d 797.