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
COURT OF APPEALS OF INDIANA
THE METROPOLITAN DEVELOPMENT )
COMMISSION OF MARION COUNTY, )
vs. ) No. 49A04-9901-CV-40
THOMAS A. SCHROEDER, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard P. Good, Judge
Cause No. 49F12-9712-CP-4039
April 27, 2000
OPINION FOR PUBLICATION
STATEMENT OF THE CASE
The Metropolitan Development Commission of Marion County (the Commission), seeking injunctive relief and
the imposition of fines, filed an action against Thomas A. Schroeder based on
Schroeders overnight outdoor storage of inoperable vehicles. The trial court entered judgment
in favor of Schroeder following a bench trial, and the Commission now appeals.
Whether the trial courts judgment in favor of Schroeder on the Commissions action
to enforce the zoning ordinance is clearly erroneous.
Whether the trial courts judgment in favor of Schroeder on the Commissions action
to enforce a variance condition is clearly erroneous.
Schroeder is the owner of real estate located at the corner of South
Meridian Street and East Thompson Road in Indianapolis, which is commonly known as
50 East Thompson Road and also known as 4989 South Meridian Street
(hereinafter, the Real Estate). At all relevant times to this action, the
Real Estate was located in the C-3 zoning district under the Commercial Zoning
Ordinance of Marion County, a part of the Code of Indianapolis and Marion
County. The zoning ordinance, which sets out the development standards for the
C-3 district, provides in pertinent part that gasoline service stations, lubricating and oil
change services, convenience markets, services centers or functions shall not include the storage
of inoperable, damaged or wrecked vehicles, other than those awaiting immediate repair.
In the early 1970s, the Real Estate was owned by Marathon Oil Company
(Marathon) and used for the operation of a three bay gas service station.
The station closed in approximately 1973 and the Real Estate remained vacant
for several years. Marathon subsequently leased the Real Estate to Arthur Henson
and Dennis Merillat. In 1977, on application of Henson and Merillat, the
Marion County Board of Zoning Appeals (the BZA) granted a variance from certain
use requirements to permit the expansion of the existing three bay service station
to a seven bay transmission sales and service business with signs and off-street
parking on the Real Estate. The BZA imposed several conditions upon the
granting of the variance, one of which stated: No outside overnight storage
of vehicles other than one vehicle over a 24 hour period. (R.
234). The variance and its conditions were not recorded in the Marion
County Recorder Office. Henson and Merillat then began to operate an AAMCO
Transmissions business on the Real Estate.
In 1979, Henson and Merillat sold the AAMCO business to Schroeder, who began
leasing the Real Estate from Marathon. In December of 1993, Schroeder purchased
the Real Estate from Marathon. Marathons Limited Warranty Deed to Schroeder conveyed
the real estate subject to zoning ordinances, subdivision and planning laws and regulations
and building code restrictions and all laws, rules and regulations relating to land
and structures and their use. (R. 392, 489). Because a title
search of the Real Estate did not reveal the existence of the 1977
variance or variance condition, Schroeder was unaware of the 1977 variance that limited
the number of vehicles stored overnight on the property. (R. 567).
In the Spring of 1995, Schroeder erected a fence around the perimeter of
the Real Estate. On June 21, 1995, the Commission issued a civil
zoning violation citation to Schroeder regarding the Real Estate (listed in the citation
as 50 E. Thompson Road) for failure to comply with the development standards
in that there was a barbed wire on the fence on the Real
See footnote On July 7, 1995, the Commission filed a complaint for injunction
and fine against Schroeder based on this alleged violation of the zoning ordinances
and subsequent violations of the same. Specifically, the Commission sought 1) a
fine for each violation; 2) an order requiring Schroeder to remove the barbed
wire; and 3) an order permanently enjoining Schroeder from using or permitting the
use of the Real Estate for the operation of a permitted use without
complying with development standards, specifically the location and maintenance of barbed wire in
the required front yard and in front of the existing building, or any
other use which is not permitted by Marion County zoning ordinances. (R.
On May 9, 1996, the Commission moved to vacate a scheduled compliance hearing,
stating that [t]he real estate located at 50 East Thompson Road is in
substantial compliance with applicable zoning ordinances and that Schroeder had paid all fines
and costs due. (R. 402). The trial court judge granted the
motion, vacated the hearing and deemed the case disposed of. (R. 405).
On October 3, 1997, zoning inspector Scott Brown inspected the Real Estate and
observed twelve vehicles without current license plates. The Commission subsequently issued a
civil zoning violation citation to Schroeder for the outdoor storage of inoperable motor
vehicles on October 3. On November 3, Brown inspected the Real Estate
again and observed five vehicles on the property.
In December of 1997, the Commission filed a complaint for injunction and fine
against Schroeder. In Count I, the Commission alleged that on or about
October 3, 1997, the Real Estate was being used for the outdoor storage
of one or more inoperable vehicles in violation of zoning ordinance and that
subsequent inspection of the Real Estate indicated that violations were continuing. In
Count II, the Commission alleged that the Real Estate was being used for
the overnight storage of greater than one vehicle, which is prohibited by one
vehicle condition of variance. The Commission sought several remedies, including: 1)
the imposition of a fine in the amount of $2,500 for each violation;
2) an order permanently enjoining Schroeder from using or permitting the use of
the Real Estate for the unlawful uses described above; and 3) an order
requiring Schroeder to remove any inoperable vehicles stored outside and to remove all
vehicles stored outside overnight except one permitted by the variance grant. (R.
13). Schroeder generally denied the allegations of both counts and asserted numerous
affirmative defenses, including: statute of limitations, laches, waiver and acquiescence, equitable estoppel, and
At the hearing, Schroeder testified that his company has probably always had more
cars on the lot than one car, and that virtually over a long
period of time theres always been . . . a number of cars,
fifteen or twenty, twenty-five cars parked outside overnight. (R. 494). He
further testified that the number of cars he keeps on the Real Estate
had increased over the years because of 1) the increase in the length
of time it takes to diagnose the car problems and 2) the decrease
in the accessibility of the parts to fix the problems. Schroeder acknowledged
that some vehicles had been on the Real Estate for a number of
months and that it was possible that some vehicles had remained outside on
the Real Estate for longer than a year. (R. 498). Schroeder
claimed that he had been unaware of the 1977 variance when he began
to lease the property from Marathon in 1979, and was unable to testify
as to when he learned of the variance. When asked whether he
could stay in business if he could only park one car outdoors overnight,
It would just be impossible to operate the business and only store one
car overnight. Ive got no alternative. Ive got no place to
put the cars. Even if I had a lot up the street,
you know, if I would have to take two people to
if I went to rent a lot somewhere, one person to drive the
car and the other person to drive the car back. Some of the
cars what if the cars didnt move? They were cars that
I just towed in at 5:00 in the afternoon and hadnt had a
chance to work on them or check out even?
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 Commissions complaint.
Standard of Review
Before addressing the merits of this appeal, we note our standard of review.
When a trial court has entered specific findings of fact and conclusions
of law along with its judgment pursuant to Ind. Trial Rule 52, our
standard of review is two-tiered.
Estate of Whitehead, 718 N.E.2d 1207, 1210
(Ind. Ct. App. 1999). We first must determine whether the evidence supports
the findings and second, whether the findings support the judgment. Carnahan v.
Moriah Property Owners Ass'n, Inc., 716 N.E.2d 437, 443 (Ind. 1999). The
findings are clearly erroneous only when a review of the record leaves us
firmly convinced a mistake has been made. Id. We disturb the
judgment only where there is no evidence supporting the findings or the findings
fail to support the judgment. Id.
I. Zoning Ordinance
A. Doctrine of Laches
The trial court concluded that the doctrine of laches barred the Commissions action
to enforce the zoning ordinance. It is well established that laches is
not a defense to a municipalitys action to enforce its zoning ordinances.
See, e.g., Harbour Town Associates, Ltd. v. City of Noblesville, 540 N.E.2d 1283,
1287 (Ind. Ct. App. 1989); Hannon v. Metropolitan Development Commission of Marion County,
685 N.E.2d 1075, 1080 (Ind. Ct. App. 1997). Because the trial court
failed to follow this well-established rule of law, the trial courts findings and
stated conclusions thereon that laches barred the Commissions action to enforce the zoning
ordinance is clearly erroneous.
B. Waiver and Acquiescence
The trial court concluded that the Commission, by knowingly acquiescing in the conditions
existing on the Real Estate, had implicitly waived the right to enforce the
zoning ordinance. (R. 162). The Commission argues that the trial courts
determination in this regard is clearly erroneous. We agree.
Initially, we note that Schroeder has not cited, nor have we found, any
Indiana authority supporting the proposition that the doctrines of waiver and acquiescence are
defenses to an action by a municipality to enforce its ordinances. The
equitable defense of acquiescence arises when a plaintiff has assented for an unreasonable
length of time to the assertion or operation of the wrong or adverse
right. See 12 I.L.E., Equity, § 52, p. 301. In the
case of Simon v. City of Auburn, Ind., Bd. of Zoning Appeals, 519
N.E.2d 205, 215 (Ind. Ct. App. 1988), this court identified three elements of
laches: 1) inexcusable delay in asserting a right; 2) implied waiver arising
from knowing acquiescence in existing conditions; and 3) circumstances causing prejudice to the
adverse party. Accordingly, acquiescence in an alleged wrong or an adverse right
is an essential element of laches. To the extent that public policy
interests prohibit a private party from asserting laches as a defense against a
municipality in the enforcement of its zoning ordinances, they also would preclude a
private party from asserting acquiescence -an element of laches - in such an
action. See Harbour Town Associates, Ltd., 540 N.E.2d at 1287 (discussing the
public policy interests prohibiting a private party from asserting laches against a municipality).
Further, waiver is the intentional relinquishment of a known right. Panhandle Eastern
Pipe Line Co. v. Tishner, 699 N.E.2d 731, 737 n. 1 (Ind. Ct.
App. 1998). The trial courts findings do not address whether the Commission
intentionally relinquished all future rights of enforcing the zoning code on the Real
Estate. Importantly, our review of the record fails to reveal that the
Commission ever communicated to Schroeder that it was attempting to relinquish rights to
enforce the zoning ordinance in respect to Schroeders use of the Real Estate.
Similarly, the findings do not address whether the Commission even had the
authority to relinquish or waive the rights of the municipality to enforce its
ordinances. In all, the trial courts findings merely track the Commissions failure
to discover or enforce the provision of the zoning ordinance at issue.
Under these circumstances, we find that the evidence submitted by Schroeder was insufficient
to support the trial courts finding that waiver and acquiescence barred the Commissions
action to enforce the zoning ordinance.
The Commission next claims that the trial courts judgment that Schroeder had a
valid non-conforming use is clearly erroneous.
See footnote We agree.
A "nonconforming use" is a use of property which lawfully existed prior to
the enactment of a zoning ordinance, and which is allowed to continue after
the effective date of the ordinance even though it does not comply with
the applicable use restrictions.
Ragucci v. Metropolitan Development Com'n of Marion County,
685 N.E.2d 104, 105 (Ind. Ct. App. 1997). Existing nonconforming uses are
typically exempted from use restrictions, because the right of a municipality to enact
zoning restrictions is subject to the vested property interests acquired prior to the
enactment of the ordinances. Id. The method for establishing a non-conforming
use is to prove that the use began prior to the applicable zoning
ordinance. See Metropolitan Development Commission of Marion County v. Hair, 505 N.E.2d
116, 117 (Ind. Ct. App. 1987). Here, the trial court did not
find that the property had a non-conforming use that lawfully existed prior to
the enactment of the zoning ordinances. Further, Schroeder admitted that his use
was permitted only by a variance and that he had no evidence that
his use of the property pre-dated the zoning ordinance. Therefore, the trial
courts conclusion that Schroeder had a valid non-conforming use is also clearly erroneous.
D. Statute of Limitations
Schroeder claims that we must nevertheless affirm the trial courts judgment in his
favor on the Commissions action to enforce the zoning ordinance because the trial
courts findings reveal that the Commission brought the action after the expiration of
the applicable statute of limitations. Where a trial court has issued special
findings pursuant to T.R. 52(A), the reviewing court may affirm the judgment on
any legal theory supported by the findings. Mitchell v. Mitchell, 695 N.E.2d
920, 923 (Ind. 1998). Before affirming on a legal theory supported by
the findings but not espoused by the trial court, the reviewing court should
be confident that its affirmance is consistent with all of the trial courts
findings of fact and inferences drawn from the findings. Id. at 924.
Schroeder is correct that the Commission is required by statute to bring an
action to enforce an ordinance within two years after the alleged conduct or
violation. See Ind. Code § 36-1-6-3 (a proceeding to enforce an ordinance
must be brought in accordance with IC 34-28-5); Ind. Code § 34-28-5-1(c)(2) (an
action to enforce an ordinance must be brought within two (2) years after
the alleged conduct or violation occurred).
Here, the Commission alleged in its complaint that a violation occurred on or
about October 3, 1997 when the Real Estate was being used for the
outdoor storage of one or more inoperable vehicles. . . . (R.
23). The Commission brought this action based on this alleged violation on
December 10, 1997. Therefore, the Commission timely brought this within two years
of the alleged conduct or violation of the zoning ordinance sought to be
Schroeder nevertheless maintains that the statute of limitations began to run in 1995,
when the Commission performed its inspections on the Real Estate and issued a
citation to Schroeder for having a barbed wire fence. Schroeders argument is
based on the trial courts finding that in 1995, the Commission knew, or
had the means of knowledge, that Schroeder was violating the applicable zoning ordinances.
(R. 160). However, as noted above, the Commissions complaint did not
seek to enforce any 1995 zoning violations on the Real Estate or seek
the imposition of fines for the same. Further, under General Ordinance No.
165, Appendix D, Part 26, Section 6 B (a 1993 amendment to the
Code of Indianapolis and Marion County), [e]ach day a civil zoning violation remains
uncorrected constitutes a second or subsequent violation. Therefore, we find that the
Commission timely filed its action against Schroeder to enforce the zoning ordinance.
Res Judicata/Judicial Estoppel
Schroeder next contends that the judgment of the trial court as to Count
I must be affirmed because the trial courts findings support a conclusion that
Commissions action is barred by judicial estoppel. Schroeders contention is essentially premised
on a claim that the Commissions statement in a 1995 motion to vacate
a show cause hearing that the Real Estate was in substantial compliance with
applicable zoning ordinances bars the present action to enforce the zoning ordinance.
Judicial estoppel precludes a party from asserting a position in a legal proceeding
inconsistent with one previously asserted. United Rural Elec. v. Indiana Michigan Power,
716 N.E.2d 1007, 1010 (Ind. Ct. App. 1999). The Commissions present action
against Schroeder is based on Schroeders outdoor, overnight storage of one or more
inoperable vehicles on the Real Estate in 1997. The Commissions 1995 enforcement
action against Schroeder was based on the presence of barbed wire on the
Real Estate in 1995. Thus, the Commissions present action to enforce the
1997 zoning ordinance violation is not inconsistent with a position asserted in the
In a similar argument, Schroeder suggests that the trial courts judgment must be
affirmed because the trial courts findings support a conclusion that the Commissions action
is barred by the claim preclusion branch of res judicata. This argument
is equally unpersuasive. The law of res judicata operates to preclude litigation
regarding matters which have already been litigated . . . . [A]
judgment on the merits is an absolute bar to a subsequent action between
the same parties on the same claim. New Haven v. Chemical Waste
Management, L.L.C., 701 N.E.2d 912, 923-24 (Ind. Ct. App. 1998), trans. denied (quoting
Mutchman v. Consolidated Coal Co., 666 N.E.2d 461, 464 (Ind. Ct. App. 1996)).
Claim preclusion occurs when a prior adjudication on the merits by a
court of competent jurisdiction acts as a bar to a subsequent action on
the same claim between the same parties or those in privity with them.
Hermitage Ins. Co. v. Salts, 698 N.E.2d 856, 859 (Ind. Ct. App.
We are unaware of any Indiana cases specifically addressing whether a previous enforcement
action bars a city from bringing a subsequent action against the same defendant
for other violations that may have been occurring during the first prosecution.
Nevertheless, we find persuasive the reasoning in City of Evanston v. G &
S Mortgage and Investment Corp., 11 Ill. App.3d 642, 297 N.E.2d 331 (1973).
In that case, the City of Evanston brought successive actions against an
apartment owner for violation of zoning and housing codes. In addressing the
applicability of the doctrine of res judicata, the Illinois Appellate Court determined:
In the instant case, the subsequent action was based on a different cause
of action and not on the same cause of action, because under the
Citys zoning ordinance each days violation is a separate offense. The offenses
being prosecuted in the second action were different and separate offenses from the
offenses which had been prosecuted in the first action. As a result,
the doctrine of estoppel by judgment with its might have been res judicata
is inapplicable to this instant second action.
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.
In conclusion, we find that the trial courts judgment in favor of Schroeder
is clearly erroneous.
II. Variance Condition
A. Equitable Estoppel
The Commission contends that the trial courts determination that the Commissions 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 governments 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 courts 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 Commissions conduct. Therefore, the trial courts findings do not support
its conclusion that equitable estoppel bars the Commissions action to enforce the variance
In balancing the equities, we find any threat to the public by the
Commissions 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 Schroeders 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 courts 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 Schroeders 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 courts 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
persons interest in property should be measured as of the time it is
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 owners 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 States 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 courts 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 Commissions
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 owners
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 BZAs 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 courts 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
courts finding in this regard is clearly erroneous.
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 Schroeders occupation of the Real Estate.
Therefore, the trial courts judgment is not supported by the findings nor by
the evidence in the record.
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 courts 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 courts finding, in and of itself, does not support a conclusion
that the Commission has violated Schroeders equal protection rights. The mere failure
to bring enforcement actions against others who may be violating the zoning ordinance
does not excuse Schroeders violation or bar the Commissions 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 courts findings do not support a conclusion that the Commissions enforcement of
the zoning ordinance amounts to a violation of his equal protection rights.
We therefore conclude that the trial courts judgment as to the Commissions action
to enforce the variance condition is clearly erroneous.
In conclusion, the judgment of the trial court on both counts of the
Commissions complaint against Schroeder is reversed. Because we reverse the judgment in
favor of Schroeder, we grant the Commissions request to set aside the award
of costs in Schroeders favor.
FRIEDLANDER, J., concurs
GARRARD, Sr.J., dissents with separate opinion.
COURT OF APPEALS OF INDIANA
THE METROPOLITAN DEVELOPMENT )
COMMISSION OF MARION COUNTY, )
vs. ) No. 49A04-9901-CV-40
THOMAS A. SCHROEDER, )
GARRARD, Senior Judge, dissenting with separate opinion.
While I agree with the majoritys 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 Schroeders 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 courts finding that the Commissions actions and inactions misled
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 governments
conduct. The court in Hannon said the same thing. 685 N.E.2d
Here it cannot seriously be doubted that Schroeder acted to his detriment in
reliance upon the Commissions 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 governments 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 majoritys disposition of the other legal issues presented.
I would therefore affirm the trial courts 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.
Footnote: Prior to issuing this citation, zoning inspector Rhonda Walthen visited the Real
Estate approximately five or six times and observed the storage of more than
one vehicle outside over a 24-hour period.
Footnote: For example, the trial court found that 1) the Commission had inspected
the Real Estate numerous times before filing its 1995 complaint for injunctive relief
against him; 2) the Commission filed a motion to vacate a compliance hearing
in May 1996 because the real estate . . . substantial compliance with
applicable zoning ordinances; and 3) from July 1995 through May 1996, Schroeder had
continually violated the zoning ordinances.
We note that Schroeder has failed to brief this issue.
Footnote: In support of his argument that the complaint was untimely, Schroeder cites
Custer v. Plan Commission of the City of Garrett, 699 N.E.2d 793 (Ind.
Ct. App. 1998), wherein a panel of this Court addressed whether a city
may bring an action outside the two-year statutory limit to enforce a municipal
ordinance when the defendant does not raise the time limit as an affirmative
defense but instead asserts it as a basis for a motion for judgment
on the evidence. 699 N.E.2d at 794. Custer assumed for purposes of
appeal that the City of Garrett brought the action to enforce the zoning
ordinance outside the two-year statutory limit and did not discuss when the time
began to run against the City of Garrett. Id. 794-95.
Further, Custer did not mention whether the City of Garretts zoning ordinance had
a provision providing that each day a civil zoning violation remains uncorrected constitutes
a second or subsequent violation. Therefore, we fail to see how Custer
supports Schroeders argument.
The Commission also claims that the trial court erred in concluding
that equitable estoppel barred its action to enforce the Zoning Ordinance. We
need not address this contention because the trial court did not make such
a conclusion, and Schroeder concedes that equitable estoppel is not applicable to the
Commissions action to enforce the Zoning Ordinance.
Footnote: The Fifth Amendment to the United States Constitution provides in relevant
part that [n]o person shall . . . be deprived of . .
. property, without due process of law; nor shall private property be taken
for public use, without just compensation. The Taking Clause of the Fifth
Amendment applies to State action through the Fourteenth Amendment.
Dolan v. City
of Tigard, 512 U.S. 374, 83-384, 114 S.Ct. 2309, 2315-2316, 129 L.Ed.2d 304
The trial court also stated in its findings that according to a
local organization and Schroeders immediate neighbors, the AAMCO business use on the Real
Estate is an asset to the community and enforcement of the condition would
not be in their best interest. (R. 160). While this may
establish grounds for seeking a new variance request with the board of zoning
appeals, it does not establish that the original condition is void as being
unreasonable at its inception.
Schroeder also challenges the constitutionality of Ind. Code § 36-7-4-921, which
authorizes the BZA to permit or require the owner of property to make
a written commitment. However, Schroeder did not seek declaratory relief challenging the
validity of the statute or raise the issue in his pleadings. Further,
we agree with the Commission that we do not have jurisdiction to declare
the statute unconstitutional as Schroeder has failed to comply with Ind. Code §
34-14-1-11, which provides that [i]f the . . . ordinance . . .
is alleged to be unconstitutional, the attorney general of the state shall also
be served with a copy of the proceeding and be entitled to be
Footnote: Interestingly enough only the Commissions letter to the prior owners attorney
referred to the property as located at 4989 S. Meridian St. Schroeder
knew it only by its commonly known address as 50 E. Thompson Rd.
The petition for the variance had stated its location as the northeast
corner of the intersection of State Road 135 and Thompson Road.
Footnote: I do not imply that in this case the government intentionally
hid the condition. Instead, it appears likely that the conditions were so
hidden from view that the government agents did not know of them either.
Such lack of intent does not alter the public interest question.