Dаrrell Maxey and Kenneth Corneil purchased a parcel of property which had been used by the Valparaiso Community Schools as a bus maintenance and storage facility. They intended to use the facility in much the same way but as a private, commercial enterprise. Later, when they applied for a "Certificate of Occupancy", their aрplication was denied by the zoning administrator. They appealed this denial to the City of Valparaiso Board of Zoning Appeals. The appeal was denied.
They petitioned the Porter Circuit Court for a writ of certiorari. In response to their petition, the Board of Zoning Appeals filed a motion to dismiss the petition which was granted. The court held:
"1. The Plаintiffs' Petition admits the Plaintiffs' proposed use is contrary to the zoning ordinance, which petition does not support its allegations of illegality.
2. The Plaintiffs' have not complied with the rules of procedure of the Board of Zoning Appeals as indicated in that Ordinance.
3. The Plaintiffs have not exhausted their administrative remedies as required by statute."
Later, a second аpproach was taken by Maxey and Corneil. They filed a petition for a variance. After a public hearing, the Board of Zoning Appeals denied their petition. From this denial, they filed another petition for writ of certiorari with the Porter Circuit Court. The writ was issued. After a review of the findings of fact filed by the Board of Zoning Appeals, the Circuit Court upheld the denial of thе variance. Maxey and Corneil appeal from the denial of the variance and the Circuit Court ruling dismissing their first petition for a writ of certiorari. These issues are presented for our review:
I. Did the trial court err in holding that Maxey and Corneil's first petition failed to support its allegations of illegality of the Board of Zoning Appeals' decision?
II. Did the trial court err in finding that thеy had not satisfied the requirements of the variance statute?
III. Did the trial court err in finding that the claimed hardship was self-imposed?
*592 IV. Did the trial court err in failing to find an unconstitutional taking of property?
In reviewing the decision of a Board of Zoning Appeals, this Court and the trial court are bound by the same standard. We presume that the determination of the Board, as an administrativе agency with expertise in zoning matters is correct. The Board's decision should not be reversed unless it is arbitrary, capricious or an abuse of discretion. Porter County Plan Com'n v. Burns Harbor (1982), Ind. App.,
I.
Allegations of legality
Maxey and Corneil's petition for writ of certiorari alleges that the Board acted illegally because it failed to permit сommercial use of the former bus barn property as a continuation of a nonconforming use. However, the petition admits that the bus barn use by the schools was a permitted use. The distinction between a permitted use and a nonconforming use is crucial to the disposition of this issue, since a reading of the ordinance shows that a particular use cannot bе both permitted and nonconforming at the same time.
The area where the facility is located is zoned R-1 residential. Single family dwellings surround the facility. Article VIII, Section 8.02 lists the following uses as permitted uses:
"a. Single family detached dwellings.
b. Publicly owned or operated buildings, libraries, parks parkways, and recreational facilities.
c. Churches and other facilities normally incidental thereto, provided that the proposed site for a church is not less than two (2) acres; that there is adequate access to all required off-street parking areas; that there is no parking in the required front yard; and that the church site is adjacent to a major thoroughfare.
d. Public, parochial and private elementary intermediate schools, and/or high schools offering courses in general education, not operated for profit.
e. Colleges, universities and similar type institutions for higher learning, including those land uses which are normally incidental to the operation of such institutions.
f. Nursery schools, day nurseries and child care centers; provided that for each *593 child so cared for, there is provided and maintained a minimum of one hundred (100) square feet of outdoor play area. Such play space shall have a total minimum area of at least one thousand (1,000) square feet, and shall be sereened from any adjoining lot in any residential district in accordance with the requirements of Section 4.28.
g. Private non-commercial recreational areas.
h. Municipal buildings and uses.
i Home occupation as defined by Article II of the Ordinance.
k. Off-street parking space as required in Article VI.
l. - Private swimming pools subject to requirements of Section 4.26.
m. Temporary buildings and uses for construction for a period not to exceed one year."
A nonconforming use, on the other hand, is defined in the ordinance as
"[a ny lawful use of the land or building existing at the date of passage of this Ordinance and located in a district in which it would not be permitted as a new use under the regulations of this Ordinance...."
Maxey and Cоrneil urge two points in support of their argument. First, the use {originally as a State Highway vehicle maintenance facility before the school district acquired the property) predated the ordinance. Second, vehicle maintenance facilities would not be permitted as new uses under the ordinance; therefore, their proposed use of the property constitutes the continuance of a preexisting nonconforming use. The ordinance does permit continuation of a nonconforming use provided such use is not expanded or extended. City of Valparaiso Zoning Ordinance Article V, Section 5.02.
The Board of Zoning Appeals contends, however, that the schools' use of the property was a permitted use under the provisions of the ordinance because it was a public use. It never was a nonconforming use. Although Maxey and Corneil correctly point out that ownership is not determinative of use,
2
see Pleasureland Museum, Inc. v. Dailey (1981), Ind.App.,
A somewhat analogous situation exists when municipal or governmental uses are exempt from zoning restrictions. Courts in other jurisdictions have held that a township would be exempt under an "essential services" exemption from restrictions on the collection and disрosal of refuse but a private operator was not,; Kersheske v. Township of Thomas (1965),
The charactеr of the use changes when it ceases to be governmental and becomes commercial. It becomes a use which would not be permitted as a new use within the district. Thus we have no difficulty in holding that the plaintiffs' proposed use of the property, although similar to the schools' use when broadly characterized as a vehicle maintenance garage, is neither a permitted use under the ordinance nor a continuation of a nonconforming use. The schools' use was permitted; therefore, the use was never nonconforming.
The decision of the Board which denied Maxey and Corneil's petition to operate the facility as a continuation of a nonconforming use was not illegal, and the trial court properly dismissed the petition for writ of certiorari for failing, as a matter of law, to support its allegations of illegality. 4
IL.
Variance Requirements
The Board of Zoning Appeals found that Maxey and Corneil had failed to establish the five statutory prerequisites (cited at n. 1) necessary for the grant of a variance. The trial court held that there was evidence to support the Board's finding. Stated another way, the trial court found that Maxey and Corneil had failed to meet their burden of establishing the existence of each prerequisite such that no reasonable person could fail to accept them as proved. Metropolitan Board of Zoning Appeals v. Standard Life Ins. Co. (1969),
The Board found that prerequisites one (1) and two (2) had not been met because the use of hazardous materials and procedures and excessive noise in close proximity to a residential neighborhood would be injurious to public health and safety, аnd the general welfare of the community. The scope of activities and hours of operation far exceeded the schools' use of the property. These aspects of the proposed use would have a substantial negative effect on the future use and present value of adjacent properties.
Maxey and Corneil propоsed to repair motor vehicles including automobiles, semi-tractors, recreational vehicles and motorey-cles as well as small engines such as lawnmowers, snowmobiles and snowplows. The hours of operation would be from 6:00 a.m. to 6:00 p.m. Monday through Friday and from 6:00 a.m. to 4:00 p.m. on Saturday. A neighbor's log of activities, introduced at the hearing, showed vehicles coming аnd going and other activities occurring at the property during hours other than those stated on the petition. The evidence also included a police report of a complaint of excessive noise on the premises, which the investigating officer reported to be preparation of cars for a demolition derby. Other than the statements of Mаxey and Cor-neil's attorney to the contrary, they presented no evidence that the proposed operation would not be injurious to the *595 public or have an adverse effect on the use or value of adjoining property.
Maxey and Corneil presented evidence that the property was narrow and quite deep, containing several garage-type buildings and a parking area. An expert appraiser testified on their behalf and submitted a report concluding that it would not be profitable to develop the property for either single family or multi-family residential. The Board found that there was insufficient evidence that Maxey and Cor-neil had explored and exhausted other alternative uses of the рroperty. In other words, the Board was not persuaded that the need for the variance arose from some condition peculiar to the property.
The same evidence is applicable to the determination by the Board that strict application of the ordinance would not constitute an unusual and unnecessary hardship to the propеrty because it could be developed for some other use more acceptable to the Comprehensive Plan. We emphasize that the burden is on the party seeking the variance to show that the property cannot yield a reasonable return if used only for a purpose allowed in that zone, that the plight of the owner is due to unique circumstаnces not common to the neighborhood in general, and that the proposed use will not alter the essential character of the locality. Nelson v. Board of Zoning Appeals of Indianapolis (1959), Ind. App.,
Finally the Board found that approval of the variance would interfere substantially with the Comprehensive Plan since one of its major goals is to eliminate non-conforming uses and to preserve residential neighborhoods.
Sinсe a petitioner for a variance must establish the existence of all of the prerequisites, the failure of proof on any one will be sufficient to defeat his request. See Metropolitan Development Com'n of Marion Cty. v. Camplin (1972),
III.
Hardship Self-Imposed
Because we agree that Maxеy and Cor-neil failed to establish the elements required for a finding of hardship, it is unnee-essary to discuss their contention that the Board improperly decided that any hardship they may have suffered was self-imposed.
IV.
Unconstitutional Taking
For the denial of a variance to be an unconstitutional taking, the trial court must find that the ordinance as applied would preclude the use of the prоperty for any purpose to which it is reasonably adapted and that the variance will not adversely affect the essential character of the locality. Metropolitan Board of Zoning Appeals v. Gateway Corp. (1971),
With regard to the first factor, the Board did not accept the appraiser's report as conclusive because they were not satisfied that other alternative uses had been examined. The appraiser's report was confined to an examination of the economic feasibility of developing the land for single or multifamily housing; the report concluded that such uses, while physically possible on the site, would not be profitable. Maxey and Corneil did not carry their burden of showing a preclusion of any reasonable use.
*596 The Board did find that the proposed use would have an adverse effect on the area. We must agree with the Board thаt the distinction between the public, bus-barn use and the commercial enterprise operated by Maxey and Corneil is critical. In a residential neighborhood the comings and goings of the public, seeking vehicle and engine repairs year 'round at a commercial establishment differs significantly from the maintenance and operation of school buses by regular еmployees during part of the year. The zoning ordinances recognize and support this distinction by limiting commercial and industrial uses to generally non-residential areas. We agree that the change from the public-purpose use used by the schools to the less limited commercial use by Maxey and Corneil would adversely affect the essential character оf the residential neighborhood. Thus the denial of the variance does not rise to the level required for an unconstitutional taking of property.
The judgment is affirmed.
Notes
. (Formerly at IC 18-7-2-71) Variances may not be granted except upon a determination that:
"(1) the grant will not be injurious to the public health, safety, morals, and general welfare of the community;
(2) the use or value of the area adjacent to the property included in the variance will not be adversely affected;
(3) the need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zone; and
(4) the strict application of the terms of the zoning ordinance will constitute an unusual and unnecessary hardship as applied to the property for which the variance is sought.
(5) the approval does not interfere substantially with the comprehensive plan."
. Article V, Section 5.10 of the ordinance provides:
"There may be a change in tenancy, ownership, or management of an existing nonconforming use, provided all regulations applicable to nonconforming uses are observed."
. It is generally recognizеd that permitted uses include accessory uses customarily incident to the permitted use. 101A CJS Zoning & Land Planning § 148, p. 464.
. The other grounds for dismissal of this first petition were evidently based upon the fact that the petition alleged that the Board should have granted a variance. However, Maxey and Cor-neil had not actually requested or followed the - procedures for requesting a variance in their first appeal to the Board.