FOR PUBLICATION

ATTORNEY FOR APPELLANT :            ATTORNEYS FOR APPELLEE:

MARGUERITE M. SWEENEY            J.F. BEATTY
Assistant Corporation Counsel             NANCY G. ENDSLEY
Office of Corporation Counsel            Landman & Beatty
Indianapolis, Indiana                    Indianapolis, Indiana

THE METROPOLITAN DEVELOPMENT        )
COMMISSION OF MARION COUNTY,         )
                                     )
Appellant-Plaintiff,                 )
                                     )
vs.                                  )    No. 49A04-9901-CV-40
                                     )
THOMAS A. SCHROEDER,                 )
                                     )
Appellee-Defendant.                  )

Whether the trial court’s judgment in favor of Schroeder on the Commission’s action to enforce a variance condition is clearly erroneous.

(R. 568).
    On December 17, 1998, the trial court, upon timely request, made special findings of fact and stated conclusions of law thereon and entered judgment in favor of Schroeder on both counts of the Commission’s complaint.

Id. at 334. In the present case, the Commission could not have pleaded the identical facts in 1995 as it pleaded in the instant action, which arose from violations occurring on the Real Estate in 1997 under an ordinance which provides that each day a violation continues is a separate violation. Accordingly, the claim now at issue was not, and could not have been, determined in the prior action. See footnote
    In conclusion, we find that the trial court’s judgment in favor of Schroeder is clearly erroneous.
II. Variance Condition
A. Equitable Estoppel
The Commission contends that the trial court’s determination that the Commission’s action to enforce the variance condition was barred by the doctrine of equitable estoppel is clearly erroneous. We agree.
Equitable estoppel is available if one party, through its representations or course of conduct, knowingly misleads or induces another party to believe and act upon his conduct in good faith and without knowledge of the facts. Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 (Ind. Ct. App. 1998), trans. denied. Equitable estoppel cannot ordinarily be applied against government entities. Hannon v. Metropolitan Development Commission of Marion County, 685 N.E.2d 1075, 1080 (Ind. Ct. App. 1997). This Court has recognized multiple public interest and equitable reasons not to allow the defense of equitable estoppel when a municipality elects to enforce zoning ordinances, including: 1) the purpose of zoning is to protect the public interest; 2) zoning regulations are created pursuant to the political process; 3) a particular city representative cannot waive the public's right to enforce the ordinance; 4) the wrongdoer brought his condition on himself; and 5) allowing a balance of equities when enforcing violations would encourage violations and greatly debilitate any zoning policy. See Harbour Town, 540 N.E.2d at 1080.
    The exception to the rule that equitable estoppel cannot be applied against governmental entities is if the public interest would be threatened by the government’s conduct. Hannon, 685 N.E.2d at 1080. In the present case, the trial court found the following representations and affirmative conduct of the Commission: 1) an unidentified employee of the Department of Metropolitan Development represented to Schroeder that there was no variance for 50 East Thompson Road, and 2) the Commission moved to vacate a scheduled compliance hearing in 1996, indicating that Real Estate was in substantial compliance with applicable zoning ordinances. Although many of the trial court’s findings relate to how Schroeder was harmed by this affirmative conduct of the Commission, they do not explain how the public interest was threatened by the Commission’s conduct. Therefore, the trial court’s findings do not support its conclusion that equitable estoppel bars the Commission’s action to enforce the variance condition.
In balancing the equities, we find any threat to the public by the Commission’s conduct seems minimal when compared to the public interests served by barring equitable estoppel defenses against zoning violations. We agree with the Commission that “[i]n carving out an enforcement-free zone for Schroeder and his vehicles, the trial court has served Schroeder’s interest at the expense of the public interest.” Appellant's Reply Brief, p. 5. Therefore, we find no compelling reason to deviate from the general rule barring the equitable estoppel defense against zoning violations. As a matter of law, the trial court’s judgment is not supportable in its findings nor on the evidence in the record.
B. Regulatory Taking Without Just Compensation
    The trial court concluded that “enforcement of compliance with the variance condition at this time” would constitute a taking of Schroeder’s property without just compensation in violation of the Fifth Amendment of the United States Constitution. (R. 163). In essence, the trial court determined that the variance condition, which limited the outdoor storage of vehicles to one vehicle, constitutes a regulation and that enforcement of this regulation would deny Schroeder of all economically beneficial use of the land.
The Fifth Amendment to the United States Constitution includes a prohibition against taking private property for public use without just compensation. See footnote This prohibition is designed to prevent the government from forcing some people to bear public burdens that, in all fairness, should be borne by the public as a whole. Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554(1960).
Although property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. Board of Zoning Appeals v. Leisz, 702 N.E.2d 1026, 1028 (Ind. 1998). There are two discrete categories of regulations that violate the Takings Clause regardless of the legitimate state interest advanced: 1) regulations that compel a property owner to suffer a physical invasion of his property; and 2) regulations that deny all economically beneficial use of the property. Id. at 1029. It is undisputed that Schroeder has not suffered a physical invasion of his property as a result of a regulation; therefore, we must determine if a regulation has denied Schroeder all economically beneficial use of the property.
We find that no regulatory “taking” has occurred because the trial court’s findings and the undisputed evidence reveal that Schroeder does not possess a use interest in the Real Estate that will be affected by the enforcement of the variance condition. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), the Supreme Court indicated that a person’s interest in property should be measured as of the time it is acquired:
Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with. This accords, we think, with our ‘takings’ jurisprudence, which has traditionally been guided by the understandings of our citizens regarding the content of, and the State’s power over, the ‘bundle of rights’ that they acquire when they obtain title to property.

505 U.S. at 1027, 112 S.Ct. at 2899.
Here, Schroeder acquired a "bundle of rights" when he purchased the Real Estate, but he also acquired a bundle of limitations and restrictions on its use. The trial court found that Schroeder purchased the Real Estate from Marathon, subject to “zoning ordinances, subdivision and planning laws and regulations . . . and regulations relating to land and structure and their use.” (R. 392, 489). The trial court’s findings also reveal that one such “regulation” or limitation was a condition included in a variance granted to the previous possessors of the Real Estate that denied the previous landowner and possessors of the Real Estate the right to store more than one vehicle overnight on the Real Estate. Therefore, the right to store more than one vehicle overnight on the Real Estate was not a part of the bundle of property rights that Marathon conveyed to Schroeder. Because Schroeder did not acquire a right to store more than one vehicle overnight, Schroeder does not have a use interest in the Real Estate which can be “taken” by the Commission’s enforcement of the variance condition.
C. Unreasonable Variance Condition
    The trial court concluded that the variance condition was both unreasonable and unconstitutional and thus, void and unenforceable against Schroeder.
Ind. Code § 36-7-4-918.4 authorizes a board of zoning appeals to grant a variance and permit a property owner to use his property in a manner forbidden by the zoning ordinance. Schlehuser v. City of Seymour, 674 N.E.2d 1009, 1012 (Ind. Ct. App. 1996). The statute further provides that a board may impose reasonable conditions as a part of its approval of a variance of use from the terms of the zoning ordinance. Id. As appropriately noted by the Connecticut Supreme Court,
Were this not so, the board, for lack of such right, might be forced, at times to deny a variance and thus to perpetuate an owner’s plight crying for relief. Since variances allow uses forbidden by the regulations, the attachment of conditions to the granting of a variance alleviates the harm which might otherwise result. Were it not for the conditions imposed by the board of appeals, variances might not be supportable as being in harmony with the general purpose and intent of the zoning ordinance.

Town of Burlington v. Jencik, 168 Conn. 506, 362 A.2d 1338, 1340 (1975). Therefore, we must determine whether the variance at issue was subject to reasonable conditions of approval at the time it was imposed.
If the condition is not reasonable, and “was thus invalid when imposed, it can be excised, unless the use permitted by the variance, if continued without the condition, would alter the character of the neighborhood or do violence to the zoning plan, or unless a balance of equities favors protection of property development patterns that have relied on the existence of the condition and fairly call for its continuation.” Aldrich v. Schwartz, 258 N.J. Super. 300, 609 A.2d 507, 512 (1992).
Unfortunately, neither I.C. § 36-7-4-918.4 nor Indiana case law explain what a “reasonable” condition is. However, we find appropriate considerations in that regard provided in Schlehuser, 674 N.E.2d at 1009, wherein this court stated:
Conditions or restrictions must be clearly stated so that the landowner and his neighbors are not left in doubt as to the nature or extent of the use permitted. Restrictions must also be constitutional and may not themselves exceed the scope of authority delegated to the BZA by the relevant ordinance or statute. They should (1) not offend any provision of the zoning ordinance; (2) require no illegal conduct on the part of the permittee; (3) be in the public interest; (4) be reasonably calculated to achieve a legitimate objective of the zoning ordinance; and (5) impose no unnecessary burdens on the landowner.

674 N.E.2d at 1014 (citations omitted).
    In the present case, the trial court did not find, nor does the record reflect, that the variance condition offends any provision of the zoning ordinance. The trial court also made no finding as to whether the condition was reasonably calculated to achieve a legitimate objective of the zoning ordinance. Schroeder, who had the burden of proof, failed to present any evidence as to the BZA’s considerations when it imposed the one-vehicle condition.
The purpose of the C-3 Neighborhood Commercial District as stated in the zoning ordinance is as follows:
The C-3 District is designed to permit the development of a complete range of retail sales and personal, professional and business services required to meet the maximum demand of a fully developed residential neighborhood – regardless of its size. Examples of such types of uses include neighborhood shopping centers, sales of retail convenience or durable goods, shopping establishments, retail and personal and professional service establishments. It does not make provision, however, for those businesses that draw customers in significant numbers from well beyond a neighborhood boundary and are, therefore, unusually heavy traffic generators, such as theaters. It does not allow those businesses that require the outdoor display, sale or storage of merchandise; require outdoor operations; or permit outdoor service and consumption of food and beverages. In general, to achieve maximum flexibility of permitted land use, the C-3 District makes possible a highly varied grouping of indoor retail and business functions.

(R. 271). Thus, the zoning ordinances place significant limitations on outdoor storage and operations. The limitations of the storage of vehicles was a proper and reasonable attempt to minimize the impact of an intense automobile repair use on the surrounding neighborhood, in keeping with the stated purpose of the C-3 district. Therefore, we conclude that the trial court’s determination that the condition was unreasonable is clearly erroneous.
In its conclusions of law, the trial court speculated that compliance with the condition “could cause Schroeder to violate the Indiana Mechanics Lien law and statutory and common laws prohibiting conversion prohibit Schroeder from removing abandoned and repaired vehicles from the property in order to comply with the variance condition.” (R. 164). However, we find nothing in the plain language of the condition that requires any illegal conduct on the part of Schroeder. Indeed, the record discloses that at the time Schroeder began operating the AAMCO business, he had numerous options regarding his potential problem of storing of abandoned and repaired vehicles, including: refusing to take on work without adequate assurance of payment; storing seven vehicles in the service bays and one outside; and storing excess vehicles at another site where vehicle storage is legal. Thus, the trial court’s finding in this regard is clearly erroneous. See footnote
    Finally, the trial court concluded that the condition imposes an unnecessary burden upon Schroeder and the Real Estate. In support of this conclusion, the trial court found as follows:
Use of the Real Estate as an Aamco Transmission business is not viable if Schroeder must comply with the variance condition. Such use would not have been viable in 1977, or at any time thereafter, if compliance with the variance condition had been previously enforced.

(R. 161). However, this finding is unsupported by the evidence inasmuch as Schroeder failed to present any evidence regarding the viability of the AAMCO business from 1977, when the condition was imposed, and 1979, when he began to occupy the Real Estate. Further, there was no evidence that the condition was not complied with prior to Schroeder’s occupation of the Real Estate. Therefore, the trial court’s judgment is not supported by the findings nor by the evidence in the record.
D. Equal Protection
    Schroeder argues that the judgment of the trial court can be affirmed because the application and enforcement of the variance condition would violate his right to equal protection under the Fourteenth Amendment of the United States Constitution and Article 1, Section 23 of the Indiana Constitution. He suggests that the trial court’s finding that a nearby auto repair business stores an unlimited number of vehicles on its property outside overnight supports the conclusions that his equal protection rights were violated. We disagree.
The trial court’s finding, in and of itself, does not support a conclusion that the Commission has violated Schroeder’s equal protection rights. The mere failure to bring enforcement actions against others who may be violating the zoning ordinance does not excuse Schroeder’s violation or bar the Commission’s prosecution against him. See Jones v. Hendricks County Plan Commission, 435 N.E.2d 82, 84 (Ind. Ct. App. 1982). As properly noted in Hameetman v. City of Chicago, 776 F.2d 636 (7th Cir. 1985), “[t]he Constitution does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all. Otherwise few speeders would have to pay traffic tickets.” 776 F.2d at 641 (citations omitted). The trial court did not make any findings as to whether: 1) Schroeder was singled out for an invidious discriminatory reason; 2) the auto repair business has a legally established non-conforming use or a variance which permits outdoor storage of vehicles; or 3) the Commission has chosen not to enforce the zoning ordinance against the auto repair business. We therefore conclude that the trial court’s findings do not support a conclusion that the Commission’s enforcement of the zoning ordinance amounts to a violation of his equal protection rights. See footnote
We therefore conclude that the trial court’s judgment as to the Commission’s action to enforce the variance condition is clearly erroneous.

GARRARD, Senior Judge, dissenting with separate opinion.

    While I agree with the majority’s statement of the general principles of law applicable to this case, I disagree with their application to what was for all intents and purposes a secret condition imposed upon Schroeder’s use of his property. I therefore dissent in part as follows.
    The majority has substantially stated the facts as found by the trial court and sustained by the evidence, except it failed to point out that after the Commission moved to vacate the compliance hearing in May, 1996, asserting that Schroeder was in substantial compliance with applicable zoning ordinances, and the case was deemed disposed of by the court, Schroeder expended substantial monies on the improvement of the property.
    The facts found established that Schroeder had no actual knowledge of the terms of the variance; the variance was never recorded and was not revealed in the title search; direct inquiry to the Commission resulted in Schroeder being told there was no variance affecting his use; See footnote despite numerous visits by the zoning inspector when cars were parked outside, the only action prior to December, 1997, concerned the use of barbed wire and resulted in the substantial compliance dismissal; and even the attachment of the variance on the “obscured second page” of the “relevant” variance map did not disclose the variance condition. Moreover, the facts found sustain the court’s finding that the Commissions actions and inactions misled Schroeder.
I agree with the majority that laches is not available as a defense against the government. See, Hannon v. Met. Dev. Comm. 685 N.E.2d 1075, 1080 (Ind. Ct. App. 1997).
On the other hand, the majority recognizes that equitable estoppel may apply if the party asserting the estoppel acted in reliance upon affirmative action taken by the government and if the public interest would be threatened by the government’s conduct. The court in Hannon said the same thing. 685 N.E.2d at 1080.
Here it cannot seriously be doubted that Schroeder acted to his detriment in reliance upon the Commission’s affirmative actions. The majority, however, summarily determines that no threat to public interest is posed by enforcement. I disagree. The fundamental distinction that I find between this case and the host of zoning cases that refuse to apply equitable estoppel is that this case involves not the government’s application of a duly enacted zoning ordinance, but its attempted application of conditions imposed in what to all intents and purposes amounts to an undiscovered and undiscoverable variance granted to the terms of a zoning ordinance. I would venture to say that there is substantial public interest in requiring government to make readily available to owners of private property any governmental restrictions on the use of that property, and conversely, there is substantial public interest in preventing government from using secret restrictions to punish landowners and deny them otherwise proper uses of their land. See footnote Accordingly, I would find the Commission equitably estopped from asserting the one car limitation contained in the variance.
My reasoning, however, does not preclude enforcement of the limitation imposed in the zoning ordinance, itself. That is, the limitation against storing inoperable, damaged or wrecked vehicles, other than those awaiting immediate repair. Schroeder was bound to know of these restrictions as they were available to all.
I concur in the majority’s disposition of the other legal issues presented.
I would therefore affirm the trial court’s determination that the one car limitation imposed in the variance cannot be applied to Schroeder and would otherwise reverse and remand for such further proceedings as may be necessary.