ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
D. TIMOTHY BORN ROBERT R. FAULKNER
SHAWN M. SULLIVAN Evansville, Indiana
AREA PLAN COMMISSION OF ) EVANSVILLE AND VANDERBURGH ) COUNTY and THE CITY OF ) EVANSVILLE, ) ) Appellants-Defendants, ) ) vs. ) No. 82A01-9712-CV-429 ) KEVIN J. WILSON ) ) Appellee-Plaintiff. )
RATLIFF, Senior Judge
standard practice and was normally followed by a more permanent grant upon a renewed
application at the end of the first year.
On August 3, 1995, a Plan Commission staff member notified Wilson by letter that the special use permit would soon expire. Wilson elected not to file an application for a new permit. Instead, he filed a complaint for declaratory judgment alleging that the portion of the Evansville Zoning Code requiring the permit (the special use ordinance or the ordinance) was unconstitutional.
After a hearing, the trial court issued findings of fact, conclusions of law, and a judgment in Wilson's favor. The trial court concluded that the special use ordinance was unconstitutional. The Plan Commission and Evansville now appeal the trial court's judgment.
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 court's findings of fact and inferences
drawn from the findings. Id. In reviewing the judgment, we must first determine whether
the evidence supports the findings and second, whether the findings support the judgment.
Ahuja v. Lynco Ltd. Medical Research, 675 N.E.2d 704, 707 (Ind. Ct. App. 1996), trans.
denied. The judgment will be reversed only when clearly erroneous. Id. Findings of fact
are clearly erroneous when the record lacks any evidence or reasonable inferences from the
evidence to support them. Id. To determine whether the findings or judgment are clearly
erroneous, we consider only the evidence favorable to the judgment and all reasonable
inferences flowing therefrom, and we will not reweigh the evidence or assess witness
Here, the trial court's declaratory judgment order was accompanied by findings of fact and conclusions of law which the trial court apparently made sua sponte.See footnote 1 The same standard of review applies when the trial court gratuitously enters findings of fact and conclusions of law, with one notable exception. Indiana Farmers Mutual Insurance Co., 679 N.E.2d at 1381. When the trial court enters such findings on its own motion, the specific findings control only as to the issues they cover, while the general judgment standard applies to any issue upon which the court has not found. Id.
charitable and philanthropic institutions; public parks and recreational facilities; and
stadiums, auditoriums, and arenas. Zoning Code §15.153.08.134. These special uses are
designated as such because they are necessary to the life and economic health of the
community, but have characteristics of operation that do not readily permit classification in
the usual residential, commercial, or industrial districts. Zoning Code §15.153.08.130. A
property owner may utilize his property to exercise a special use in a traditional zoning
district as long as the property owner secures a special use permit and the special use is
permitted in that zoning district. Zoning Code, §15.153.08.136. A property owner wishing
to utilize his property as a school or church is permitted to do so in any residential,
commercial, or industrial zoning district. Zoning Code, Table S.U. at page 15-20. In order
to obtain a special use permit, any property owner intending to utilize his property for any
of the special uses must comply with the procedure set forth in the special use ordinance.
Zoning Code §15.153.08.132.
The purpose of the special use ordinance, as stated on its face, is the accommodation of desirable land uses which cannot be subject to rigid and restrictive classification into the traditional residential, commercial, and industrial zoning districts. It is the legislative accommodation of special uses which necessitates an administrative review of the impact of the special use at a particular location within a given zoning district. Accordingly, the requirement for a use permit is set out in the ordinance so that the body entrusted with the task of reviewing the application . . . can make certain that it would not adversely affect the
public interest if placed in a particular location within the permitted zone. 3 Ziegler,
Rathkopf's The Law of Zoning and Planning §41.01, p. 4 (1981).
The inclusion of churches and church-operated facilities as special uses in the ordinance does not evince an intent to regulate religious belief. Instead, such inclusion recognizes churches as one of many uses which do not fit easily into traditional zoning districts. The procedure set forth in the ordinance represents Evansville's determination to accommodate land use, and it applies to all special uses without regard to the religious or philosophical beliefs of the various landowners. Regulation of land use is a secular public purpose, and the special use ordinance carries out this purpose in a manner which is generally applicable to all special uses.
Wilson contends that the entire Evansville Zoning Code is not neutral because it requires churches and church-operated facilities to acquire a special use permit in a commercial district while authorizing similar uses, such as meeting halls, lodges, and union halls, to operate without acquiring a permit.See footnote 2 Wilson's contention is misplaced because the land uses referenced by Wilson may be both readily classified into particular traditional zoning districts and prohibited from existing in other zoning districts. However, as noted above, special uses of land cannot be readily classified or restricted to certain zoning districts. Thus, special uses, such as schools and churches, are entitled to special consideration and are permitted in all traditional zoning districts even though they are not
strictly compatible with the designated uses of that district. The regulation of land use under
the Evansville Zoning Code is both generally applicable to special uses and neutral.
Accordingly, the Code and the special use ordinance pass constitutional muster under Smith.See footnote
After listing the various procedural provisions of the special use ordinance in its
findings of fact, the trial court concluded that the procedures set forth in the ordinance for
the acquisition of a special use permit constituted a substantial and unreasonable burden
upon Wilson's free exercise of religion. Indiana courts have not specifically addressed the
problem of how to determine whether the conditions imposed on the acquisition of a special
permit are too onerous. However, one authority has noted that conditions imposed on a
special permit are proper provided they do not, by their cost, magnitude, or volume, operate
indirectly to exclude such uses altogether. 83 AM. JUR. 2d Zoning and Planning § 443
(1992) (citing Cornell University v. Bagnardi, 68 N.Y.2d 583, 510 NYS2d 861) (emphasis
supplied). We find this authority to be instructive.
The special use ordinance requires a landowner to (1) ascertain the names of the owners and tax codes of neighboring property; (2) pay an application fee; (3) file an application listing the owners and tax codes of the neighboring property; (4) supplement the
application with a site plan showing the proposed use of the land, the location of buildings
and structures, streets, access drives, off street parking, loading facilities, landscaping, green
areas, and other specifications deemed necessary; (5) pay a legal ad fee for notification by
newspaper; (6) mail notice via certified mail, return receipt requested to neighboring
landowners; (7) submit a notarized affidavit regarding notice prior to the hearing; (8) attend
the meeting at which the application is to be heard; and (9) obtain a vote of approval from
a majority of the BZA members. The conditions require the expenditure of a reasonably
small amount of time, effort, and money. Although the conditions constitute a burden upon
Wilson, they do not constitute an unreasonable burden. The conditions are not so onerous
that they indirectly exclude the special use by their cost, magnitude, or volume.
conclusion on its determination that the criteria set forth in the ordinance for the approval of
an application for a use permit are sufficiently subjective that the [BZA] enjoys a wide
degree of discretion in whether or not to approve an application for a special use permit. See footnote
(R. 393). The trial court further concluded that the BZA's discretion to use the criteria in
refusing to grant a special permit, coupled with its discretion to place reasonable conditions
upon the grant of a permit, was so wide as to constitute an unconstitutional prior restraint
on the free exercise of religion. (Conclusion of Law #6, R. 394).
The special use ordinance is a neutral regulation of general applicability dealing with land use and determinations of the impact of those uses upon public health, welfare, and safety. The ordinance understandably gives the BZA discretion to apply general criteria and conditions to the potential interference with public health, welfare, and safety occasioned by uses ranging from schools and churches to hospitals, crematoria, sanitary landfills, and
livestock auction houses. The ordinance is intended to regulate the use of land, not the
speech of the owner of that land.
To the extent that the special use ordinance has an effect on Wilson's right to free speech, we find that it does not impermissibly imbue the BZA with unfettered discretion. The ordinance itself clearly indicates that discretion given to the BZA is to be used to help accommodate the special use. Furthermore, we have previously held that a zoning board's denial of a special permit will be subject to strict review. See Board of Zoning Appeals v. Schulte, 241 Ind. 339, 172 N.E.2d 39, 43 (1961) (holding that the adverse effect on property values is insufficient reason to deny a special permit to a church); Milharcic v. Metropolitan Board of Zoning Appeals of Marion County, 489 N.E.2d 634, 637 (Ind. Ct. App. 1986) (holding that restrictions upon religious facilities are appropriate only where the need or benefit which occasions the exercise of police power outweighs the restriction on the rights of freedom of worship and assembly); Board of Zoning Appeals of Decatur v. Decatur, Indiana Company of Jehovah's Witnesses, 233 Ind. 83, 117 N.E.2d 115, 120-21 (1954) (holding that lack of off-street parking was an insufficient reason to justify denial of a building permit to a church). Accordingly, the BZA's discretion to deny a special use to Wilson is severely limited.
as a Christian oriented institution would by definition exempt other religions of a non-
Christian nature from the requirement of obtaining a special use permit. (Conclusion of
Law #11, R. 395). It further concluded that the exemption of other non-Christian religions
from the requirement to obtain a special use permit constitutes an impermissible
discrimination against worshipers of the Christian faith and is thus unconstitutional.
(Conclusion of Law #12, R. 395).
The trial court's finding is based upon the circled portion of a page copied from a legal dictionary and sent to Wilson by a zoning enforcement officer in response to his inquiry about the definition of the term as used in the special use ordinance. The circled definition, which was sent prior to Wilson's 1994 application for special use, characterizes a church as [i]n its most general sense, the religious society founded and established by Jesus Christ, to receive, preserve, and propagate his doctrines and ordinances. (R. 443).
Initially, we must express our incredulity that the BZA would actually ascribe such a narrow definition to the term. However, given the evidence presented to the trial court, we cannot find that the trial court's finding of fact is clearly erroneous. However, we do find that the trial court's ultimate conclusion of law on this issue is clearly erroneous.
The Evansville Zoning Code permits specified uses in specific zoning districts. Absent a special use permit or grant of variance, all other uses in these districts are forbidden. If we accept the trial court's finding of fact, Christian oriented churches may operate in any district as a special use upon the grant of a special use permit. Non-Christian religious institutions, however, are neither specified uses nor special uses. Accordingly, the landowner
wishing to use land as a non-Christian institution must secure the grant of a variance. The
grant of a variance is much more difficult to obtain than the grant of a special use permit.
See Boffo v. Boone County Board of Zoning Appeals, 421 N.E.2d 2d 1119, 1124 (Ind. Ct.
App. 1981) (quoting Rathkopf, §41.10, pp. 19-20 (1980)). Thus, landowners practicing
non-Christian religions, not Christian oriented churches, would be discriminated
Converted from WP6.1 by the Access Indiana Information Network