*1 defendant acknowledgment that the court's At on counts. sentenced both not be
could hearing, it stated: guilty plea understanding, "It is the Court's of Indiana with both State consulted possi- is no that there and the Defendant sentencing in this bility of consecutive matter, that therefore ... and power pursuant to ... only has Court to sentence of Indiana
Supreme Court these regard to one of with you ... there one murder was counts of of the crime." victim proper. imposed was The sentence with instructions The cause is remanded guilty plea court to vacate to the trial on one judgment of conviction and the of murder. the two counts things, the trial court In all other affirmed. DeBRULER,
GIVAN, C.J., PREN- PIVARNIK, JJ., concur. TICE ZON The METROPOLITAN BOARD OF II, APPEALS, MARI DIVISION ING COUNTY, Indiana, Consisting of: ON Chairman, Hayes, Imhau Fred Robert Chafee, sen, Member, Mem Mrs. Hank ber, Fuller, Member, D. Michael John Member,
McGinley, Richard Loren Hudson, Hudson, Mary Ann and Noble Centers, Operated Marion Citizens, Ap for Retarded Association Below), pellants (Respondents GUNN, Appellee Barbara Below). (Petitioner No. 2-583A157. Indiana, Appeals of Court Fourth District.
April23,1985. *2 Rees,
David F. City-County Legal Div., Weaver, Ben J. Olvey, Thomas N. Johnson Weaver, & Indianapolis, appellants. for Lewis, Ted B. Donn Wray, H. Christine Royce, F. Stewart Irwin Gilliom Fuller & Meyer, Indianapolis, appellee. for MILLER, Presiding Judge. petitioned Barbara Gunn for writ of cer- tiorari from an order issued the Metro- politan Zoning Appeals (Board), granting special exception for the estab- lishment of a developmen- home for tally disabled adults next-door to Gunn's home. The trial court reversed the Board's order after concluded the Board had improperly requirement cireumventеd the prior approval by for the Meridian Street Commission, findings Preservation its were insufficient, and its order was contrary to After considering argu- law. the Board's opposition ments in judgment to the court's counter-arguments Gunn's in support thereof, we must find the trial court erred and do reinstate the Board's order. Re- versed.
ISSUES
The issues we purposes address here for reversal,1 parties' as distilled from the briefs, are: 1) Whether grant- the Board's action in ing special exception home developmentally for disabled adults 1. The constitutionality Board also ultimately attacks the cause we determine this act does not preservation herein, the act for the prohibit of historic street we obvi- (IND.CODE (1976)). areas seq. ously 18-4-24-1 et Be- need not address the constitutional issue. preservation the Meridian Street area consistent with the residential charac- legislation neighborhood. was in contravention of ter of the historic street areas 2. THE GRANT OF THE SPECIAL (IND.CODE seq. 18-4-24-1 et EXCEPTION WILL NOT INJURE OR (now seq.)); at IND.CODE 14-8-8.2-1 et ADVERSELY AFFECT ADJA- 2) findings the Board's basic CENT AREA OR PROPERTY VAL- Whether *3 support special exception in said fact THEREIN UES because: are insufficient to sustain its ultimate There externally will be no discernible findings.2 change present from the appearance or subject estate,
use of the real and it FACTS essentially will remain a residential use. 11, 1982, January Mary Loren On 3, petition Ann filed a Hudson before THE GROUP BE HOME WILL IN special exception for a Board HARMONY WITH THE CHARAC- Street, THE (located TER OF DISTRICT AND LAND Indianapolis, North Illinois area) preservation in the Meridian Street USE AUTHORIZED THEREIN be- property group order to use the home cause: eight developmentally of no more than dis- subject The use оf the real estate will thereafter, Shortly pe- abled adults. a like residential, remain and there will be no filing
tition with its fee was returned to the from the deviation residential charac- by the Meridian Hudsons' counsel Street neighborhood ter of the which would (Commission) Preservation Commission be- incompatible or inconsistent with opinion cause it was the Commission's surrounding land use. prohibited by the was historic THE 4. SUBJECT REAL ESTATE IS act, specifically I.C. 18-4-24- NOT LOCATED WITHIN THREE 19, regarding single-fami- habitation (8,000) FEET, "THOUSAND FROM ly dwellings preser- in Meridian BUILDING LOT LINE TO BUILD- However, hearing vation area. after evi- LINE, ING LOT OF ANOTHER dence, Board, April granted on GROUP HOME FOR DEVELOPMEN- group special exception Hudsons a home TALLY DISABLED PERSONS be- following findings with and conclu- cause: sions: developmen- No other home for tally persons exists in this disabled "FINDINGS OF FACT area, and the nearest home to beyond subject real estate is well 1. THE THE GRANT OF SPECIAL BE (8,000) EXCEPTION WILL NOT INJURI- threе thousand feet from the HEALTH, THE PUBLIC building subject OUS TO line of real lot MORALS, SAFETY, CONVENIENCE estate.
OR GENERAL WELFARE because:
THE
HOME WILL BE LI-
GROUP
proposed
BY THE DEVELOPMEN-
The intended residents of
CENSED
way injurious
in no
TAL
RESIDENTIAL
group home are
DISABILITIES
aforesaid,
subject
COUNCIL AND WILL
and the use of the
FACILITIES
AP-
WITH ANY AND ALL
real estate
said residents will be
COMPLY
However,
appellate
extensively argued
App.,
does
brief
7. THE PLAN OF OPERATION OF Petitioner, 4. The adjoining THE GROUP HOME IS RESI- landowner of commonly real estate DENTIAL IN NATURE because: Street, known as 4577 North Illinois Indi- herein, Operation, The Plan of filed anapolis, Indiana, aggrieved per- in a demonstrates that the activities and sonal and pecuniary way by a performed by functions the intended Board's decision in Case Number residents are compatible consistent and granted SE2-4 Respondents' peti- which with residential use and the residential entered, tion and pur- which decision was surrounding character of the area. suant adopted findings to the Board's of certiorari to review the Board's decision. sions: following pertinent court reversed the Board's action on the tioned the Marion After resident Record, pp. 114-15. One month later on sion)." reference and made a conditions are EXCEPTION 82 granted, subject Board that GROUP HOME SPECIAL ined IT IS THEREFORE the decision of the hearing arguments at 4577 North Illinois the minutes of this Board DECISION Superior incorporated to findings and conclu- any SEZ2-4 is May part Court for a writ conditions stat- 19, counsel, Street, of this deci- hеrein Gunn, hereby (which peti- by a Ann was codified as Sections 18-4-24-1 et Meridian Street Preservation Commis- seq. tan At areas and Exception was ture, torically and architecturally significant ed in the Meridian Street Preservation District, ana Code of chapter concerning preservation of his- Public Law 260 of the Indiana fact, 7. Loren Richard 6. The real the time the [*] Board of of the Indiana on Hudson filed a entitled April # streets 1971, 18-4, 'An 20, Zoning Appeals, estate was created Acts filed with the [*] Act to Amend the Indi- Request 1982. Code, in question Hudson and cities and towns. petition L by adding a new 1971. by L Metropoli- with the said Act Legisla- is locat- Special Mary 1979, [*] "FINDINGS OF OF LAW AND JUDGMENT ENTRY # [*] FACT, L [*] CONCLUSIONS [*] denied of the Indiana sion for cial exception, pursuant by approval the Commission on January Code, 1971, to request § 18-4-24-13 which was spe- 1982. 2. Respondents, The Loren Richаrd
Hudson, Mary Ann Hudson and Noble 8. Loren Richard Mary Hudson and Centers, petitioners were the in Case No. Ann Hudson did not seek review of the by Although certio- 6. jurisdic- decision writ of the Board has Commission's § the In- pursuant requests rari 18-4-24-21 of tion to hear for variances and special exceptions, requirement Code, im- diana 1971. § posed 18-4-24-18(a) The Meridian Street Preservation pri- 9. makes approval or entirely of of the Meridian Street Pres- District consists residential districts, Commission, dwelling including schools and ervation aor favorable de- § designated land not as dif- pursuant churches on termination on review 18- classifications, spe- 4-24-21, but as jurisdictional ferent prece- condition dent to the exercise of juris- the Board's cial uses. granting diction and to the dwellings 10. All of the the Meridi- an Street Preservation District are sin- request. gle-family dwellings. 7. Section 18-24-19 of the Indiana creating In the act when Code, 1971, requires single-family Preservation District Meridian Street dwellings within the Meridian Street enacted, special excep- there were no
was
occupied
Preservation District are to be
tions in existence in the Marion
family,
no more than one
and defines
Dwelling District Ordinance.
family
individuals,
mean
one or more
Special Exeep-
12. The Petition for
all
marriage,
related to one another
proposed Group
tion stated that
consanguinity
legal adoption.
occupied by eight
Home would be
§§
provisions
18-4-24-1 et.
individuals,
developmentally disabled
Code, 1971,
seq. of the Indiana
demon-
*5
plus
person.
a non-resident staff
part
legisla-
strate an intent on the
of the
ture to control the use of land within the
CONCLUSIONS OF LAW
District,
Meridian Strеet Preservation
L
[*]
#
[*]
[*]
[*]
and that
any proposed changes in
or de-
tition for
41,1981, Docket Number
which must be satisfied
variances
taining
without the
granting
sets
ana
shall be
an Street Preservation Commission.
or
every final determination of the Meridian
Street Preservation Commission
City-County General Ordinance Number
Code, 1971, provides
4. Section
5. Section 18-4-24-21 of the Indiana
3. The ordinance under which the
adoption
[*]
Code, 1971,
forth seven
property
or
of a
granted, adopted or amended
or
#
special
of
prior approval
applying
petition
special exception....
18-4-24-18(a)
any zoning
#
provides
or
exception
(7) standards,
bordering property
for the amendment
for the review of
u
81-A0-2,
that no
ordinance
of the Meridi-
prior
was filed is
of the Indi-
[*]
Meridian
by filing
to the
all of
#
per-
pe-
tions are included within the
property
to be reviewed and
pursuant to
vation Commission.
and a
stantive difference between
approved by Meridian
change
special exception,
ana
that:
ridian Street Preservation Commission
viations
9.
SAFETY,
RIOUS TO
OR GENERAL
'THE
word
Code, 1971,
Although
special exception,
Street
in the use of Meridian GRANT
from that use
which the
'variance' in said statute.
Board's
MORALS,
§ 18-4-24-13(a)
there is
and that
WILL NOT
constituted a
WELFARE because:
approved by
legislature
PUBLIC
finding
CONVENIENCE
be reviewed and
normally
this
Street Preser-
special excep-
of the Indi-
number
request
meaning
BE
HEALTH,
proposed
intended
variance
the Me-
a sub-
INJU-
(1)
proposed
residents of the
The intended
petition
for writ of certiorari
verified
way injurious
in no
group home are
Superior
with the
Court of
Cireuit
aforesaid,
(60)
subject
of the
days
and the use
County
sixty
Marion
within
af-
real estate
said residents will be
ter the date of final determination.
with the residential
charac-
IS, THEREFORE,
IT
ORDERED,
AD-
consistent
neighborhood.'
ter of the
JUDGED, AND DECREED tht
[sic]
says only
that the individuals to reside in
Metropolitan
decision of the
Board of
County,
of Marion
Indi-
injuri-
the Home themselves will not be
ana,
II,
ous,
granting
Division
says nothing
respondents'
as to whether
grant
request
special
be,
exception,
of the
would
be
health,
injurious
is,
public
safety,
hereby
to the
the same
reversed."
morals,
general
convenience or
welfare. Record, pp.
disputes
266-74. The Board
such,
finding
As
no
bears
relation-
conclusions;
agree
these
they
we
are incor-
ship
subject
require-
matter of the
rect.
Ordinance,
support
ments of the
does not
requirements
Ordinance,
DECISION
legally
is
insufficient.
When a trial
court
asked to
finding
11. The Board's
numbеr
review a decision
a board of
that:
appeals, it
following
is constrained
'THE GRANT WILL NOT INJURE
principles.
fundamental
A
writ
certiora-
OR ADVERSELY AFFECT THE AD-
alleging
ri
illegality
of a board's deci
AREA
JACENT
OR PROPERTY
sion is the
seeking
device for
trial
VALUES THEREIN because:
86-7-4-1008,
court
review.
IND.CODE
externally
There will
no
discernible
words,
36-7-4-1009.
In other
the court
change
present appearance
from the
or may examine the board's decision to deter
estate,
subject
'use of the
real
and it mine if it was incorrect as a matter of law.
essentially
will
remain
a residential
See Miller v. Board of
use,"
Ind.App.,
Rochester
397 N.E.2d
Group
is silent about the effect of the
1091; Metropolitan
Zoning Ap
Board of
values,
adjacent property
Home on
Ind.App.
does
peals
Marion
support
requirements
of the Ordi-
36;
Zoning
40
nance,
legally
and is
insufficient.
Appеals
v. American
finding
12. The Board's
number
Fletcher National Bank & Trust Co.
*6
(1965),
Ind.App.
139
205 N.E.2d322.
that:
may
The trial court
not
'THE GROUP
conduct a trial de
HOME WILL BE IN
may
HARMONY
movo
not substitute its decision
WITH
DISTRICT
AND
for that of the
illegality.
LAND USE AUTHORIZED
board absent such
THEREIN because:
v. Boone
Zoning
Board
Boffo
(1981),
Appeals
Ind.App.,
13. The decision of the
grant
Board was
in the Board's
of the special
1)
exception:
jurisdiction
the Board lacked
contrary
to law.
group
prohibition of
home
clear
matter,
"proce-
tion act's
subject matter and
the
over
side,
allega
the
the other
On
dural"; 2)
to make find-
in the locale.
the Board failed
the
stems from
claim
irregularity
tion of
alternative,
fact,
8)
the
ings of
in the
findings fail to
supported by
specific
substantial еvi-
order was not
that
the Board's
Record, pp.
findings.
2-6.
probative
support
dence of
value.
its ultimate
adequately
court's
The actual rationale for the trial
point
that she has
(We
at this
Gunn
remind
clear,
argument
no
there is
Board's order is not
conceded
reversal of the
therefor,
grounds
it recited various
regard
but
with
sufficiency of the evidence
generalized from its decision
which can be
1, supra,
fn.
thus reduc
findings, see
above)
The Board
(reproduced
as follows:
"illegality"
argument for
ing potential
the Hud-
jurisdiction to entertain
lacked
only.) We find no
"irregularity"
one of
exception
petition
special
because
sons'
illegality but do
claims of
merit to Gunn's
Board,
Commission,
had been
that,
irregularity, one
respect to
find
with
statutory authority
granted the exelusive
finding
supported by
an inсom
ultimate
con-
initial determination. The court
of an
specific facts.
plete statement of
prop-
had thus failed to
cluded the Hudsons
remedies
erly exhaust its administrative
Special Exception
Legality of
certiorari
requesting their own writ of
Reiterating briefly
portion
peti-
returned their
when the Commission
immediately preceding, we believe that
addition,
In
the trial court
tion and fees.
Gunn and the trial
contending
court are
regardless
that
of Hudsons'
determined
illegally
Board acted
granted
when it
Meridian
problems, the
jurisdictional
special exception
for the
home in two
prohibited
spe-
preservation act itself
respects:
Hudsons'
route of ad
Lastly,
exception
being granted.
cial
from
ministrative
through
recourse was
findings of
found fault with the
the court
Commission as exclusive arbiter of the Me
findings
fact,
specific
declaring the Board's
ridian Street
act rather than
findings.
support its ultimate
insufficient to
through
Board,
regardless
of ad
these
Extracting the kernel of law from
review,
exception
ministrative
itself is
conclusions,
challenges to
perceive
we
two
impliedly prohibited by the act.
Instead of
decision and one
legality
of the Board's
answering
directly
these
sepa
attacks
regularity.
Zoning
to its
See Board of
rately, we have determined
it would be
Moyer
Appeals
Indianapolis v.
comprehensible
more
to combine these ar
(distin
Ind.App.
mission to
home in
D-2
area and other such streets and areas in
District:
Legislature intends,
Indiana. The
"Group homes for developmentally dis-
passage of
Chapter,
this
encourage
persons
abled
permitted
... shall be
in
private efforts
preserve
to maintain and
Dwelling
all
Districts
the D-11
(except
portion
such
of such street and other
District)
any
and in
other
district
Indiana,
such streets
and areas
County permitting
Marion
dwelling
promote orderly
proper
usage
land
uses, subject
grant
of a SPECIAL
preserve
and to
significant tourist attrac-
The Metropolitan
EXCEPTION.
tions of historical
and economic
of Marion
value in
County, In-
Indiana,
the State of
by limiting
diana,
hereby
and re-
grant
authorized to
such
ungesthet-
SPECIAL
permit
unhealthful,
EXCEPTIONS and
stricting
unsafe,
Group
Homes in
Dwelling
ic,
Dis-
or other
unique
use of
areas which
j
incongistent
tricts."
would be
with their charac-
Record, p.
argues
16.
ter
Gunn
in-
as tourist
that the
attractions and with the
stant
error, despite
general
was
public."
welfare of the
brief,
appellate
1037;
In
additionally
her
Gunn
at-
N.E.2d
see also Board
Commissioners
itself,
validity
tacks the
of the ordinance
claim-
City
Howard
v. Kokomo
Plan Commis-
ing
improperly passed
it
prior
was
without
(stat-
sion
263 Ind.
297
neighborhood is in direct con
nent to the
end,
this
the act formu-
18-4-24-1. To
I.C.
Commission,
grant
estab-
its
to the Board to deal with
entity of the
trast to
lated the
special exceptions.
variances and
it,
both
restric-
procedures
for
established
lished
legislature's
particularizing
action in
construction,
The
ete. The Com-
on new
tions
zoning
empowered
to veto
was also
mission
variances,
authority
over
the Commission's
.
in
variances
the area:
any authority
by implication excludes
over
"(a)
after the effective date
Upon and
exceptions:
expressio
special
unius est ex-
relat-
zoning
no
variance
v.
Chapter
generally
of this
clusio alterius. See
Maroon
any Meridian Street
ing
to the use of
State, Department
Mental Health
of
Bordering Property shall be
Property
or
Ind.App.,
ing.... adopted ordinances under IC living together mily' shall mean one riage, als, For the [*] all related to one another consanguinity purposes [*] [*] as a of this (1) or [*] single or more individu- Chapter: legal *% household adoрtion, a 'Fa- [*] mar- solely in the residential facility are not relat- ed, unless business or 18-7 dential [36-7] because the residential facility the residential because the may not exclude from a residential area persons residing facility facility a resi- will be is a thereof, single together with a head (8,000) with located within three thousand feet any paid employees live-in domestic facility, of another residential as meas- up (2) guests two nontransient of such ured between lot lines. The residential household; facility may required to meet all other and 'bedroom' shall mean a room, consisting of a not less than zoning requirements, ordinances, [sic] eighty square usable feet and one laws." closet, builtin which is located or on added.) (Emphasis comparison A of this above the first floor of such structure." authority аppears to inbe conflict with the (1976)(now IND.CODE 18-4-24-19 at IND. preservation act inasmuch as that act 14-8-3.2-18, 14-3-8.2-19). CODE meaning "family" seems to restrict the " 'Single Family Family or Double Res- in the Meridian Street area whereas I.C. Dwellings' idential means residential 16-10-2.1-6.5 forbids restriction in structures which share no common wall general. formulation of ordinances in structures, with other residential However, investigation further reveals designed which were and built for occu- provision there is an pres- additional in the pancy by (2) separate no more than two act ervation which reconciles that act with families and which contain no more than 1.C. 16-10-2.1-6.5. (2) separate living quarters." two quoted provisions We two of I.C. 18-4- 18-4-24-2(13) (1976)(now IND.CODE IND. 24-19, which invests area 14-3-8.2-8). CODE pro- Gunn reads these property duty owners with the to control creating visions as upon a restriction singlе- the habitation of and double-family operation preserva- of a home in the dwellings. A present: third clause is also neighborhood tion argues proposed "Every Occupant Ownerand of Meridian single-family dwelling home is a above, "family," as defined Bordering Property shall:
299
purpose
regula
ultimate
of
(1) family
"[The
(1)
one
to
no more than
Permit
dwelling.
single-family
a
is to confine certain
inhabit
tions
classes of uses
and structures to certain areas."
Misner
(2)
(2)
families
no more than two
Permit
family dwelling;
a double
(1981),
to inhabit
Ind.App.,
Presdorf
684,
Thus,
proper
municipal
it is
(8)
any dwelling
to inhabit
unit
Permit
persons
authority
designate
to
certain
as
that number of
areas
no more than
by multiplying the total number
derived
"residential" and "to restrict
those uses
by
in such unit
the number
stable,
of bedrooms
incong-
a
which would conflict with
(8).
single-family
ested
environment."
of three
..."
Incor
added).
porated Village Freeport v. Association
{emphasis
1.C. 18-4-24-19
It
is
of
dwelling
"any
that
unit"
important to note
Help
Retarded Children
for
of
here,
opposed
language
used
as
to
is the
94 Misc.2d
406 N.Y.S.2d
222. In
"either,"
instance, which would better
obverse,
then,
municipal authority
a
(as
dwellings
types
of
refer to
two
may
those uses
maintain
authorize
which
units")
list
"dwelling
previously
opposed to
group
such a residential environment. A
apparent
us
quite
It is
to
ed
the statute.
"generic" quality
home has such a
of resi
contentions,
that, contrary to
Gunn's
purpose
dential ambience because its
is to
preservation area is not
Meridian Street
provide
qualities
so
of a
and
stable
single-
double-family
and
dwell
limited to
permanent
developmental
household to the
agаinst
ings.
prohibition
there a
Nor is
ly
disabled. Id. What Gunn asks
we
"any dwelling
non-family
habitation
among
make
do is
a distinction
households
5 Rather,
contemplated
the statute
unit."
upon
genetic
intimate or
relations
based
dwellings
City-County
all
for which
This,
rather
than land
control.
we
use
D-2,
zone,
in this case
so
Council would
believe,
See,
inappropriate.
eg.,
is
Hess
long
the area maintained its residential
as
City
193 Colo.
ling v.
of Broomfield
keeping
purpose of
character in
with the
P.2d 12.
scenic,
historic,
act,
"an
preserve
to
legislature
spoken clearly
The
has
on the
unique portion
aesthetically pleasing, and
"main-streaming" developmen-
subject of
such
a street."
I.C. 18-4-24-1. One
tally
family
adults into normal
en-
disabled
dwelling
a
home which
unit could be
than
them insti-
vironments rather
facility,"
as defined
is a "residential
tutionalizеd.
IND.CODE 16-10-2.1-1
See
statute.
IND.CODE 16-10-2.1-1
(now
seq.
resi
IND.CODE 16-18-21-1
now IND.CODE 16-18-21-1. Such
et
Meridian
families,
seq.)
policy
The
is clear. The
et
facility is not limited to
dential
act,
hand,
other
single-
preservation
and
on the
they
purposes
are defined for
dwellings
policy
specific
as related individu
in a
double-family
controls the land use
16-10-2.1-6.5,
als,
specifi
supra,
1.0.
Indianapolis neighborhood by giving
the in-
cally prohibits zoning restrictions
thereof a modicum of self-deter-
founded
habitants
Thus,
are
anyway.
on
definition
we
regarding the manner which
such
minism
to find
conflict between
unable
may may
complexion of their locale
act,
impliedly allows
which
from its essential-
changed
variances
non-family
exceptions, and
residential
policy
therein
ly residential character.
here,
is
on statutes
ordinance
based
controlling
the character of
is not one
developmentally
governing homes for the
except in denominated sin-
the households
disabled.
double-family dwellings.
If
gle- one
dwelling
granted
recognized
ex-
also deem our conclusion
We
home,
ception
neigh-
public policy.
to be labelled
general
be consonant with
non-family
preserva-
any express prohibition
will include
uses which
on
5. The absence of
residents,
only by
tion act can limit
number of
non-
not, however,
non-families
does
authorize
double-family
family
single-
maintaining
"family"-like
thereby
habitation
residential
dwellings.
statute to allow that
We read the
quality.
here,
ordinances,
special exceptions
such as
empowered
are not
boring
inhabitants
real estate
said residents will be
of the lack
prevent it on the basis
consistent
with
residential
charac-
*11
erred
relationship.
familial
The trial court
ter
neighborhood."
of the
finding
in
as a matter of law
otherwise.
findings
The trial court criticized the
here
Findings
'Irregularity
ordinance,
bearing
relationship
as
no
to the
of
of Fact
ordinance,
supporting
being
the
The trial court declared three
legally insufficient. We believe the find
conclusions of law were not
of the Board's
ings
significant
of fact do bear a
relation
by findings of facts.
In
supported
so do
ship
matter,
subject
finding
to the
the first
following
ing, he
the dictates of well-
was
being merely
paraphrase
of the ordi
regarding
precedent
judicial
established
requirement
nance's first
as it is set forth
of a decision
a board of
review
caps.
in
enough.
But this is not
See Carl
appeals:
Zoning Appeals
ton v. Board
Indi
of
of
must
in all
cases set out
"[Thе
anapolis, supra.
findings
Both
are state
findings
support
of fact
in
written
of
general policy
up
ments of
which would
their,
may
decision so that
this Court
finding
exception
hold the ultimate
that the
intelligently
specific
review that
decision
injurious
health,
would not
public
be
speculating
as to the Board's
without
etc.,
agree
findings
but we
are incor
reasoning.
findings
help
Written
of fact
being sufficiently specific.
rect as not
In
integrity
to maintain the
of the Board's
asmuch
quarrel
as Gunn has no
with the
by insuring
decision
that our review is
sufficiency
support
of the evidence to
these
strictly
findings."
limited to those
general
findings,
support
two
which do
(1972),
573,
v.
258 Ind.
Kunz
Waterman
finding,
only
ultimate
we need
remand for
371, 373;
283 N.E.2d
Corlton
irregularity by breaking
of
correction
Board of
of
generalities
specific
down into more
(1969),
337;
Ind.
252
IND.
findings.
Habig
See
v. Harker
Ind.
("The
in
CODE 36-7-4-915
board shall
all
("'Where
App.,
EXCEPTION WILL NOT BE INJURI- again The trial court stated the basic find- HEALTH, TO THE OUS PUBLIC ings support capitalized requirement SAFETY, MORALS, CONVENIENCE of the ordinance were insufficient and not OR GENERAL because: addition, WELFARE supportive. In it declares the ba- findings sic are proposed The intended residents of the silent on effect of the way injurious adjacent property home are in no home on values. aforesaid, subject contrary, and the use of the directly On Board has property values limiting single addressed the issue ~CODE 14-3-3.2-2 as family dwellings within the historic very specific stating terms there appearance no аlteration of or use occupancy by will be district to family. one subject real estate. We see fail to majority states language appears this how the Board could have rendered find- to be conflict with IC 16-10-2.1-6.5 ings as the court would demand without prohibits exclusion of residential fa- being general as a cilities on lack family based of a too restatement relation- already ordinance itself. We have estab- ship between the residents. I see no con- improper. lished this The Board would be flict, however. (the properly stated the effect ordinance IC 16-10-2.1-6.5 refers ordi- *12 requirement) specific supporting with its adopted 18-7(86-7). nances under IC This causes. statute, however, govern- deals with local findings The last of the three at- under zoning mental ordinances. The statute in tack is: question here is a zoning local ordi- "3. THE GROUP HOME WILL BE IN nance. It a passed by is statute our state WITH THE HARMONY CHARAC- legislature. It establishes as state law TER OF DISTRICT AND LAND historic district and sets forth USE AUTHORIZED THEREIN be- specific guidelines protect that district. cause: scope Since the of IC 18-7 is limited to subject The use of the real estate will level, ordinances on the local I be- residential, remain and there no will be inappropriate attempt lieve it is to use deviation from the residential charac- language separate its to control a section neighborhood ter of the which would of the Indiana Code. incompatible be or inconsistent with Furthermore, even if the two sections surrounding land use." conflict, 18-7, by were in IC relied on The trial improper court found this as a majority, general in is nature. It refers to by finding exception matter of law 14-3, all local ordinances. IC how in single-family conflict with the dwell- ever, specific particular as to in is area ing provision preser- of the Meridian Street guidelines question and the to be followed already dispensed vation act. We have protecting in that area. It is well settled argument contrary with this to the court's specific statutes are in conflict the where conclusion. There is no need for further prevail general statute will over the more point. discussion on this subject matter it one as covers. properly granted We conclude the Board Hale, (1985), Ind., et v. Higgins, al. et al. law, here on the and Gunn 95, 100; High 476 N.E.2d Indiana State appeal concedes she has no further with way Rogers Commission Bates & Con Therefore, regards to its merits. all that (1983), Ind.App., 448 N.E.2d struction Co. left to us is to remand tо the trial court for 321, 324; (1983),Ind.App., State v. Souder formality remand to the Board for the making findings of ultimate find- basic majority The further tries to show the ing specific. Number One more housing in intent of IC 14-8 is not to limit Reversed and remanded. Preservation District the Meridian Street interpreting portion of that section J., YOUNG, concurs. reads: CONOVER, J., separate dissents with "Every Occupant of Meridian Owner opinion. Bordering Property Street or shall: CONOVER, Judge, dissenting. (1) (1) family no more than one Permit dwelling. single-family to inhabit respectfully majority I dissent. The has at (2) misconstrued the statute issue herein. fam- Permit no more than two family dwelling; correctly interpreted The trial court IND. flies to inhabit double any dwelling Permit to inhabit unit persons than that number of no more multiplying the
derived total number in such unit of bedrooms number (8). of three ..." legislature if majority The states in- only single for there to be tended and dou- family dwelling ble units in this district it phrase "any would not then have used the dwelling paragraph unit" but rather dwelling would used "either have unit". majority's interpretation signifi- "any" cance of the use of the word paragraph para- if 3 would be correct
graph any dwelling referred to unit classi- it not. It but does refers to fication unit, dwelling probably of which there are hundreds in the Meridian Street Preserva- *13 tion District. agree I majority
While with the the Me- ridian Street Preservation Commission has approval rights only zoning
absolute over variances in the district not special exceptions over ordi- nance, I agree appellee with the and the trial court ordinances passed by governmental the local unit must comply statute,
first with the State portions thereof which are in conflict are would, therefore,
void. I affirm. WRESTLING, INC., CHAMPIONSHIP (Plaintiff), Appellant STATE BOXING COMMISSION State of Indiana and Treasurer (Defendants).
Indiana, Appellees No. 2-184A3. Indiana, Appeals Court of District. Second April 1985. Rehearing Denied June