*1 of the officer which very often the conduct discovery him in to make

puts position In those instanc- constitute a search.

does

es, plain view seizure is legality validity of the search.

dependent upon determining po- whether the

The test for constitutes a search

lice conduct in whether conduct violated de- expectation privacy.

fendant’s reasonable

Katz v. United U.S. States 19 L.Ed.2d 576. conduct S.Ct. position originally the officer who took a leaving

at the door consisted of front door, walking around

area of the front

house, approaching a window then

bending through a peering over and waist-

high gap between the bottom of three-inch completely-drawn almost window shade Clearly, that conduct window sill. Because that search

constituted a search. pursuant

was not conducted warrant not do fit

and because the circumstances exceptions

into one of warrant heroin can-

requirement, the seizure justified having been discovered

not be plain by that officer. view suppress should have been

The motion to

granted.

Dick A. MILLER and Irene

Miller, Appellants,

The BOARD APPEALS OF ZONING OF ROCHESTER,

the CITY FULTON OF

COUNTY, Indiana, Inc.,

Thermogas, Appellees.

No. 3-978A219. Indiana, Appeals

Court of Third District. Brown, Rakestraw, & Brown Frederick E. Dec. Rochester, appellants. Rakestraw, for 5, 1980. Feb. Rehearing Denied Rochester, Kehoe, ap- Jr., Richard L. Zoning Appeals

pellee Board Rochester. *2 Morton, Douglas Morton, B. R-l Peterson & area is liquid petroleum another busi-

Rochester, Stipher, Ralph Hall, F. Karl.J. ness. Daniels, Indianapolis, Baker & for appellee Board, At the hearing before the Ther- Thermogas, Inc. mogas presented evidence to establish that petroleum compatible its business was with GARRARD, Presiding Judge. fertilizer business and that The Board of Zoning Appeals of the City operations yield alone did not a reasonable granted Rochester a variance to Thermo- rate of planning return. A commissioner gas, Inc. to it to conduct liquid testified that should not be fertilizer sales and distribution business in zoned “residential” because existing of its conjunction existing liquid with its petrole- tanks, (storage pumping structures facilities storage um and business. buildings) related and the nature of granting the variance the Board adjoining areas. conditions to potential problems control noise, concerning dust and traffic. Co., upon Light Miller relies Inc. v. Houghton (1967), 141 Ind.App. Appellants (Miller) reside on a tract of N.E.2d 341 urge and similar cases to adjacent real estate to and east of the prop- economic considerations cannot control the erty owned Thermogas. They petitioned granting or denial of certiorari, the circuit variances. We court for do not and now appeal disagree cases, from judgment the court’s with those or with sustain- the fur- arguments the Board. Their appeal explanation ther advanced therein: question address the sole of whether unnec- “The determination of the existence of essary hardship was shown to exist. an unnecessary hardship governed which, all the relevant factors appeal when tak- these precepts: together, en determination of indicate that the property whether there is unnecessary such hardship as cannot reasonably to conforming justify grant question a variance is a use because imposed upon of limitations of fact for the Board depends it the ordinance. It must also be an assessment of all relevant factors taken shown that yield the land involved cannot together. Nelson v. Bd. of Zoning Appeals reasonable return if used for the 212, 162 240 Ind. City of purpose, allowed zoned and that the use East authorized by the variance will not alter appellate 459. Our the essential character of the locality.” review is limited to a determination of 226 N.E.2d 344. whether the Board’s illegal. action was We It is juncture at this that a critical flaw may not reverse if there is evidence of emerges in Miller’s effort probative demonstrate value the decision. error. Nelson, Most of supra; concerning the decisions Bd. of Zoning Appeals v. variances, Reed consequently language employed by courts, 'deal with whether can be used in con- The circumstances in present case formity requirements with the of the zone disclose Thermogas operated in which it is situated. That say, is to business on the question tract since the question Thermogas would be whether early 1960’s. In 1970 an consisting area could unnecessary hardship demonstrate if several lots on the north and south sides of required it were to use its tract State Road 14 (including Thermogas land) purposes provided residential R-l, was zoned in R-l zones residential. Ther- mogas at the west Rochester end of this R—1 ordinance. But area. There are no improvements upon Apart that was nearby not the issue. from real estate to the west or Approxi- north. of whether should be mately one block east of Thermogas in the permitted to sell fertilizer at this by Thermogas the variance location, pe- it was entitled to continue well-recognized principle use.1 troleum business contravenes enlargement of non- It to us that in this context the appears pur- conforming uses subverts the ultimate hardship questions of reasonableness Bd. poses zoning. Mishawaka Jacobs v. large depend upon rights part must in *3 (1979), Ind.App., 395 N.E.2d App. of Zon. the non-conforming afforded uses under or 834, 836. Bd. dinance. Cf. Jacobs v. Mishawaka Zon ing (1979), Ind.App., 395 N.E.2d Appeals 1960’s, Thermogas has early the Since 834. storage and operated liquid petroleum a in property Roches- on its business however, not, appeal Millers have 1970, the ter, In the rezoned Indiana. any prior point proceedings or at as as Thermogas, well property by owned argument any showing made or that the tracts, only. use At adjacent for residential by action was not sustained the Board’s existing petroleum operation point, that the contrary evidence or was to law once Ther law, what, is in terms of became mogas’ rights non-conforming its use un to “nonconforming use.” known der the ordinance were taken into consider course, Thermogas, ation. of was entitled “nonconforming de- phrase use” consideration, ap to such and the Board exemption constitutionally-based scribes a pears have to afforded it.2 property use re- municipally-imposed from judgment We affirm the must therefore municipality the strictions. While a to appellants wholly since have failed dem- police power use of property to restrict the onstrate reversible error. in- jurisdiction, its it cannot located within fringe upon property a landowner’s vested

Affirmed. rights; to so would constitute an uncon- do property without “taking” of stitutional HOFFMAN, J., concurs. process of Jacobs v. Mishawaka due law. STATON, J., separate dissents and files the App., supra, at 836. At Bd. of Zon. opinion. rezoned, Thermogas property its was time STATON, dissenting. Judge, right by its property land had a vested petroleum existing operation. of virtue the I is evidence to dissent. There no it to continue to Consequently, was entitled Zoning Appeals’ the de- Rochester Board of purpose, for that even use Inc., Thermogas, termination that endures adjacent prop- though tract —as well as “unnecessary hardship” which is stat- by to erties—was restricted residential obtaining utory prerequisite a variance. 18-7-5-82, City. City of Beech Schmith 1971, Grove IC Ind.Ann.Stat. 53-969 § 605, Ed.).1 (Burns Majority’s reliance Code enjoyed 609. existing on the sought. approval throughout being was or board denied never as

1. We refer to the action terminology they preclude one do since that We not believe that by parties. granting exercising used The term not necessari- board its discretion from ly inappropriate though relief, suggest even an alteration of nor do we that non-conforming use is at issue. law. entitled relief a matter of urges 2. The dissent we should refuse 18-7-5-82, supra, pertinent reads in 1. IC uses, non-conforming of part: Fidelity Downing (1946), citing Trust Co. v. specific upon appeal “4. Authorize 789; Ind. v. Elkhart Chizum cases such the terms variance from County Plan Comm. contrary pub- ordinance as will not be State ex rel. and O’Banion v. interest, where, special owing condi- lic tions, Shively (1969), provisions a literal enforcement quarrel decisions We have no with those unnecessary of the ordinance will result they but expansion note concern alteration hardship, . .” where zon- uses application “The Thermogas applied for a vari- of the unnecessary might expand petroleum hardship solely ance it doctrine is not so that by the size of the or the area storage operation to include the and deliv- piece which the property upon unnec ery petition fertilizer. Its imposed. single No essary hardship is variance was motivated its assessment un factor determines what constitutes busi- all relevant fac necessary hardship, but economically ness alone was not feasible. tors, together, must indicate when taken Zoning Appeals granted Ther- The Board of special conditions are such that mogas’ petition for a variance. cannot affected Majority, As noted economic con conforming use because of the do not siderations themselves limitation it reason of granting Zoning of a variance. Board of placed in which it classification Whiting v. McFadden *4 the terms of the ordinance. Brackett v. 534, (1975), 576, 166 337 N.E.2d Building Appeal Department, Board of of 579; Light Houghton v. 141 Co. Ind. 1942, 956; 52, 311 Mass. 39 N.E.2d St. 93, 341, Rather, App. 343-44. Concord, 1949, Onge v. of 95 N.H. economic considerations are but one factor 306, 221, 63 A.2d Heffeman v. Zon petitioner in the whether a determination Review, 1929, 26, ing Board of 50 144 R.I. “unnecessary hardship” endures the which 674, added.) (Emphasis A. 676.” required to obtain statutorily a variance. 307-308, N.E.2d at Ind. at 464-465. pointed As the have out in Millers their above, emphasized As of the focus the doc- brief, were these factors established trine evidence reveals concerns whether the Supreme Court in of East that “the affected cannot reason- 295, ably conforming (Empha- use.” 111 N.E.2d 459: added.) sis “The necessary conditions to establish Majority’s analysis sup- rests on the

‘unnecessary hardship’ concisely were use”, position “nonconforming Steinhilber, 1939, us, stated in Otto v. of synony- context the case before 851, page “conforming N.Y. at mous with supposi- N.E.2d 853: use.” The “We approve the rules above stated. the record must show that in lowed return if used question stances of the owner is due to reflect the use to be will not alter the tions in the ing discretion and ^[*] ‘Before the Board locality.’ ordinance ground . ” in that and not to the # (Citations omitted.) unreasonableness authorized cannot of neighborhood zone; (2) # itself; grant only unnecessary hardship, essential yield a for a ^[*] may unique that the general the variance (3) that character of (1) exercise its purpose # of the zon- reasonable the land circum- plight condi- ^[*] may al- which it was not dermined. Majority permits Thermogas to do that the Rochester tion is plained in Jacobs v. Mishawaka Bd. of Zon. nonconforming fine pose. nances is to secure the purpose detract from the attainment of that to certain tual elimination of uses and to restrict or diminish rather “In view of the fact uses are not than increase such uses. certain classes of uses erroneous. Thus, As Ind.App., 395 N.E.2d 834: zoning regulations areas, non-conforming generally Judge use. In entitled In policy scheme has Garrard relying upon turn, favored since gradual, to do: . the ultimate recently . purpose structures is to con- expand been . ” (Em- it, even- ordi- [sic] [sic] they pur- un- ex- of added.) phasis 232 Ind. at 111 N.E.2d at 465. The 395 N.E.2d at 836. prefaced Court its delineation of the eviden- tiary prerequisites to the of a vari- Heretofore, Courts, our consistent with Jacobs, ance supra, with this caveat: principles espoused been an extension of a non- ex repeatedly have refused to “[T]here .the conforming use on the Fidelity In pansion nonconforming uses. [sic] regard to the hours the with Downing (1946), 224 Ind. Trust v.Co. during peak season operates business 789, the held that a re Court for the Fertilizer business.” gutted by been freshment stand which had activity permitted scope because Not fire not be reconstructed has the could nonconforming use Thermogas fire, under already worn building, prior (together been with a concomi- Reconstruction, increased the Court dilapidated. traffic), impact neighborhood but tant reasoned, impermissibly would extend the oper- hours can number of normal nonconforming beyond use life. expanded ate its has also been business Elkhart Plan County Chizum v. Commis —all neighborhood residents. to the detriment of sion expansion exactly type represents This held the Court erection nonconforming use enlargement of a light poles drag strip, around v. Elkhart rejected which was Chizum use, nonconforming an constituted ille Commission, also, supra. County See Plan gal of that use. permitted And supra. Shively, ex rel. O’Banion v. State Shively (1969), in O’Banion v. rel. State ex of a use The enlargement 223, 253 Court, to residential in an area restricted dictum, obiter declared that a nonconform the ef- because of permitted should not be established the sale of beer have on the nature changes fect such *5 enlarged encompass could not be sale to living conditions. neighborhood residents’ liquor. of wine and Cf. O’Connor v. Overall Majority has that the respect, In this I note Laundry, Inc. be- hearing the conducted observed that at N.E. 134. But see Jacobs v. Mishawaka Bd. Zoning City Appeals, a fore the Board of (1979), Ind.App., Zon. “the had testified that Plan Commissioner J., (Staton, dissenting.). ”. not be zoned ‘residential’ should Here, evaluating in the evidence terms by denial transcript reveals that it was the Thermogas’ existing nonconforming Thermo- by the Plan Commission of entire than in terms of the residential clas- rather triggered request rezoning gas’ for which subject property, the sification of the Ma- before Thermogas’ for a variance petition the jority affirms Board’s determination appel- Zoning Appeals. As an the Board of Thermogas may expand its with what court, late not concerned we are storage and operation to include deliv- the not” be or “should “should” restrictions ery decision fertilizer. The does rather, we property; imposed particular on not, Majority in its as the indicates footnote which use restrictions by are the one constitute a [1]2, mere “alteration of a legislative imposed land local are on the Rather, the de- use.” [sic] Kappa, Inc. Theta generally, officials. See enlargement an of a cision effectuates non- City v. Haute of Terre conforming use. 912. Zoning Appeals Here, The Rochester Board had been property-in-question the recognized aspect of its use. expressly designated by this deci- the for residential “Findings nonconforming use with- sion of Fact and Conclu- An of a only There, in the is erroneous not neighborhood Board sions of Law.” the stated: theories, disparate [1], Majority nature of the two I 2. that in one note footnote rejected appellant’s suggests Court contention that it does not matter whether the necessary “its real variance not because issue before us is characterized “variance” was [expansion] of a non-conform “alteration estate of a an was a continuance directly Here, Thermogas applied a vari That for use.” observation con use.” Id. [sic] variance, holding ance, Supreme granted and this tradicts our Ander Court’s the Board Supply propriety engaged son Fletcher Lumber & Court of the in the review of granted Thermogas. 452 that “These variance There, based theories are irreconcilable.” ty particular geographical change effects the has on areas. residents, lifestyle turn, health, of the but also be- public safety, and welfare cause, exemplified Majority’s as Laundry, served. O’Connor v. Overall holding today, here one deviation 29, 37, from a Inc. 183 N.E. precipitate ordinance tends to anoth- Here, Majority’s utilization of the See, g., er. e. Jacobs v. Mishawaka Bd. of existing nonconforming use to App., supra. example, Zon. For one criteria variance accorded violates these Supreme established our Court in ends. Co., Refining East v. Sinclair su- development To orderly effectuate

pra, for the determination of whether “un- welfare, preserve public evidence necessary hardship” exists is whether the support petition offered to deviant use “alter the essential charac- will should of the be assessed in terms locality.” applicants ter of the Future for a on the property by classification variance or extension of a variance can legislative approach local That officials. point expanded storage contemplated not clearly our operation Majority approves which the to- Co., Supreme su- Court day claims that the residential pra, legislature but also our when it neighborhood character of the has been sub- 1971, 18-7-5-82, supra. enacted IC stantially respect eroded. I note provides that a variance should be statute ambiguous scope the record is as to the granted when “literal enforcement of the granted of the variance has been of the provisions (emphasis ordinance” add- Thermogas. It is not clear whether the ed) Here, unnecessary hardship. results in variance is limited to the added fertilizer argued, the Millers have there is no operation, or whether it also embraces the evidence property-in- to establish that the original petroleum business which exists as question could not true, a nonconforming use. If the latter conforming Accordingly, Majority use. extinguishment petrole- eventual of the affirming erred in um neighborhood can no variance. residents; *6 longer hope be a if the correct, however,

former is the existence of provide

the variance affirmed here will

foundation for a second variance in the

event extinguishment does occur. purpose zoning regula- ultimate

tions is proper- to confine uses of