Petition — Ripley County Area Plan Commission v. Rouse

88-949

Office - Supreme Court, U.S.

FILED

NOV 29 1983

ALEXANDER STEVAS.

CLERK

No.

IN THE

Supreme Court of the United States

October Term, 1983

RIPLEY COUNTY AREA PLAN COMMISSION,

Petitioner

vs.

MELVIN ROUSE, RALPH D. AILEs,

ELIZABETH J. AILES, DECATUR COUNTY

AREA PLANNING COMMISSION,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

Stephen T. Taylor Mark Dall

EATON & TAYLOR Counsel of Record

120 South Main Street Crry-CouNnTy LEGAL DIVision

P.O. Box 275 1601 City-County Building

Versailles, Indiana 47402 Indianapolis, Indiana 46204

(821) 689-5111 (317) 236-4055

Central Publishing Companys Im [lmtianapels IN Wie

QUESTION PRESENTED FOR REVIEW

Whether amortization, as a means to phase

out pre-existing lawful uses rendered non-

conforming by a zoning ordinance, is per 42

a taking of property without due process of

law under the Fourteenth Amencment to the

United States Constitution.

TABLE OF CONTENTS

Page

Question Presented For Review................006- 2

PE SAG Wace HaGehasdeevawndendeanesuantnager ety 2

EE a's dacs 4.4 graye 010-0 ene bun 43S ee eases 2

EN hidi celia sob0s obnncis fueinescaveeennmes 2

Constitutional Provision and Ordinance Involved... 3

SNE WO SID cv hoc ncciccdccads cussavaswabyn 4

Reasons for Granting the Writ..................... 5

En GUS a one's wen. ons Uh Seobe eee aeeeaue 15

Appendices

EE Dg ee cda kal ceducwasndcnscssenstenel A-l

DEE cele bokes ccecdeuesessaeanchereye « B-1

EE sia a caduorke cus ceeaen ahem C-1

PE veccdntbaavesecvecswacianes cueeea D-1

Ts acc ncusecnneousndbud oOu cambeaneeer E-1

EE os 55 cade dtaneNelevadedtignns ences aaa F-1

TABLE OF AUTHORITIES

United States Constitution cited:

Fourteenth Amendment.................++005 3

Indiana Constitution cited:

ST. els Labs ckendneneies oesucsedes 6

Ordinances cited:

Ripley County Zoning Ordinance of 1970....... 3

Cases cited:

Art Neon Co. v. City and County of Denver, (10th Cir.

PEAT EN BOW ois 000.00 cece kkevk soeedehnwane 12

Beals v. County of Douglas, (1977) Nev., 560 P.2d

th ab th 650 Sinn rin he ree bie caakacome mentee 13

Board of Supervisors of Cerro Gordo County v. Miller,

eh My BR BF ee a es 11,

City of Akron v. Chapman, (1953) 160 Ohio St. 382, 116

PROUT Sais coves ce bab b cbolnies Cecnwexewele

City of Los Angeles v. Gage, (1954) 127 Cal.App.2d 442,

Ge kak. o'k 0s dn conse tewedececuteeea 9, 11,

City of Seattle v. Martin, (1959) 54 Wash.2d 541, 342

Fn ov 0c nso bad ona yeaccuensesemuearentae

DeMull v. City of Lowell, (1962) 368 Mich. 242, 118

FEU EE dnc ncéccaneaweanndoeeonudevda tus

Grant v. Mayor and City Council of Baltimore, (1957)

BED BEG. Sel. TBD KR Ge oii ve voeccccadavess 2

Harbison v. City of Buffalo, (1958) 4 N.Y.2d 553,

Fe SEE BE i coxG cee edke chsbads besdeweubee

Hoffman v. Kinealy, (1965) Mo., 389 S.W.2d 745....

Inhabitants of the Town of Boothbay v. National

Advertising Company, (1975) Me., 347 A.2d 419

LaChapelle v. Town of Goffstown, (1967) 107 N.H. 485,

TD BO cb cick cdakecenectstousGonrn

Naegele Outdoor Advertising Company of Minnesota v.

Village of Minnetonka, (1968) 281 Minn. 492,

BE ese ee eh akc ccbevanschwenbereieewetes

Rives v. City of Clarksville, (1981) Tenn.App., 618

DAE SE i hos 0 ha FEA sea

Spurgeon v. Board of Commissioners of Shawnee County,

(1957) 181 Kan. 1008, 317 P.2d 798........... 11,

Standard Oil Co, v. City of Tallahassee, (5th Cir.

SO Fee Pee Bes os cacccuewvedsstadunatoceue

State er rel. Dema Realty Co. v. Jacoby, (1929) 168

FS 8 5 3.) RP yer errr erry

State v. Joyner, (1975) 286 N.C. 366, 211 S.E.2d 320

State v. Sanguinetti, (1982) Vt., 449 A.2d 922 .......

Swain v. Board of Adjustment of City of University

Park, (1968) Tex.Civ.App., 483 S.W.2d 727 .....

United Advertising Corp. v. Borough of Raritan,

(1962) 11 NJ. 144, 98 A.2d 362 ........ccceeees

Wolf v. City of Omaha, (1964) 177 Neb. 545, 129 N.W.2d

ee et Og ery Ae. ae

Miscellaneous Authorities cited:

The Abatement of Pre-existing Nonconforming Uses under

Zoning Laws: Amortization, 57 N.W.U.L.R. 323

GREE oS ois ai ho lcte wae den eae Rae eas ewes

Scott, The Effect of Nonconforming Land-Use Amortiza-

tion, American Society of Planning Officials

OS FU. et CRUE hei vee cacadamestnwe ses

Rathkopf, The Law of Zoning and Planning §51.09(4)

CRE A kes ced sno cance oases) Shatebeen ous

Conforming The Nonconforming Use: Proposed Legislative

Relief For A Zoning Dilemma, 33 8.W.L.J. 855 (1979)

Zoning And The Amortization of Nonconforming Uses,

GE Pea aeies SE COMET i ccshndebenceesaduornss

13

12

Rohan, Zoning and Land Use Controls §41.04 (1983) 7,9

Wood, Zoning Ordinances Requiring The Termination Of

A Nonconforming Use, 1973 Institute on Planning,

Zoning and Eminent Domain 28 ...............

Amortization and Performance Standards in Zoning

Regulations: Study of Existing Nonconforming

Uses in an Indiana Community, 30 Ind. U.L.R.

Es SN REN oc one ckeedincceesacnkscd ceubwees

Pee erry rr rn

No.

IN THE

Supreme Court of the United States

October Term, 1983

RIPLEY COUNTY AREA PLAN COMMISSION,

Petitioner

Vs.

MELVIN RousE, RALPH D. AILES,

ELIZABETH J. AILES, DECATUR COUNTY

AREA PLANNING COMMISSION,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

i

The petitioner Ripley County Area Plan Commission

respectfully prays that a writ of certiorari issue to review

the judgment and opinion of the Supreme Court of Indiana

entered in this proceeding on May 12, 1983.

QUESTION PRESENTED FOR REVIEW

Whether amortization, as a means to phase out pre-

existing lawful uses rendered nonconforming by a zoning

ordinance, is per se a taking of property without due

process of law under the Fourteenth Amendment to the

United States Constitution.

PARTIES

All parties are identified in the caption.

OPINIONS BELOW

The opinion of the Supreme Court of Indiana in the

consolidated appeal of A/les v.. Decatur County Area

Planning Commission et al. is printed at Appendix A

hereto, p. A-1, infra, and is reported at 448 N.E.2d 1057

(1983). The opinion of the Court of Appeals of Indiana in

Ailes v. Decatur County Area Planning Commission etal. is

printed at Appendix C hereto, p. C-1, nfra, and is reported

at 437 N.E.2d 1375 (°982). The judgment of the Ripley

Circuit Court in Ripley County Area Plan Commission v.

Melvin T. Rouse was not reported but is printed at

Appendix D hereto, p. D-1, infra. The order of the Ripley

Circuit Court on the Motion For Relief From Judgment in

Ripley County Area Plan Commission v. Melvin T. Rouse

was not reported but is printed at Appendix E hereto, p. E-

1, infra. The order on the Motion to Correct Errors in

Ripley County Area Plan Commission v. Melvin T. Rouse

was not reported but is printed at Appendix F hereto, p. F-

1, infra.

JURISDICTION

The judgment of the Supreme Court of Indiana was

entered on May 12, 1983. A timely petition for rehearing

was denied on August 4, 1983. On October 21, 1983,

2

petitioner applied for an extension of time to file this

petition and on October 24, 1983, Mr. Justice Stevens

extended the time to file this petition until December 2,

1983. The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3).

CONSTITUTIONAL PROVISION AND

ORDINANCE INVOLVED

Fourteenth Amendment to the Constitution of the United

States:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges and

immunities of the citizens of the United States; nor

shall any State deprive any person of life, liberty or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

Ripley County Zoning Ordinance of 1970, Section

3.5(g):

“The lawful use of a building or premises existing at

the time of passage of the ordinance, may be continued

although such use does not conform to all the

provisions of this ordinance or amendments to this

ordinance except as hereinafter provided.”

** *& *

“(g) Any nonconforming open use of land shal! be

discontinued within five (5) years from the date of

passage of this ordinance.”

vw

STATEMENT OF THE CASE

The pertinent facts and circumstances surrounding this

cause are undisputed. Melvin T. Rouse, one of the

respondents herein, owned certain real estate in Ripley

County, Indiana which he had utilized as a junkyard since

1953. On June 15, 1970, the county commissioners adopted

a zoning ordinance which zoned the district wherein

Rouse’s property was located for medium density single

and two-family residences. Junkyards were prohibited

therein. The ordinance contained the familiar language

that prior nonconforming uses could continue in existence

but specified that any nonconforming open land use must

be discontinued within five years from the date of its

passage. (R. 2).

On August 23, 1977, the Ripley County Area Plan

Commission filed a complaint for injunctive relief against

Rouse seeking to enjoin any further use of his property as a

junkyard. On August 8, 1978, the Ripley Circuit Court

granted the relief requested and ordered Rouse to remove

all junked automobiles and junk equipment within ninety

dzeys. (R. 3). On September 13, 1980, Rouse filed a motion

for relief from judgment pursuant to Ind. Rules of Trial

Procedure, Rule 60(B) alleging that the foregoing five year

amortization provision was an unconstitutional taking of

property without due process of law. (R. 11). The trial court

overruled the motion and Rouse sought appellate review

raising only the constitutional issue for consideration.' (R.

4, 5).

The judgment of the Ripley Circuit Court was affirmed

by the Indiana Court of Appeals which ruled that the

' It should be noted that the Rouse appeal was consolidated with an

appeal brought by Ralph and Elizabeth Ailes who had unsuccessfully

challenged a Decatur County amortization ordinance as an unlawful

taking of property without due process of law. (App. A-1).

4

amortization provision at issue was not unconstitutional

per se as the taking of property without due process of law.”

(App. C-1) The Supreme Court of Indiana vacated the

Court of Appeals decision and heid that amortization, in

and of itself, is per se an unconstitutional taking of property

without due process of law.* (App. A-1).

“We hold, however, that an ordinance prohibiting any

continuation of an existing lawful use within a zoned

area regardless of the length of time given to amortize

that use is unconstitutional as the taking of property

without due process of law and an unreasonable

exercise of the police power.” (App. A-8).

It is from this decision that the petitioner, Ripley County

Area Plan Commission, seeks to obtain certiorari review.

REASONS FOR GRANTING THE WRIT

A.

Whether the elimination of nonconforming uses through

a gradual amortization of the value of the use constitutes an

unlawful taking of property without due process of law

under the Fourteenth Amendment is an issue which has

never been settled by this Court but it should be. Foremost

among the reasons for granting certiorari in this case is

that amortization has generally been regarded as tlie only

effective means in zoning for abating nonconforming uses.

As a consequence of the Indiana Supreme Court’s decision

that all amortization provisions are necessarily invalid

* A similar result was reached with respect to the Ailes appeal. (App. A-

1).

* The Supreme Court of Indiana also reversed the judgment in the Ailes

appeal. (App. A-1). However, the appellee therein, the Decatur County

Area Planning Commission, has elected not to seek certiorari review

in this case.

under the federal Due Process clause,‘ Indiana

municipalities have been deprived of a valuable tool for

ensuring compliance with comprehensive zoning plans and

their ability to displace particularly troublesome

nonconforming uses such as junkyards and billboards has

been severely hampered.

The significance of the case at bar is further underlined

by the fact that it is the only reported decision in this

country to strike down amortization solely on federal due

process grounds. A perusal of those cases which have

embraced the minority view that amortization is

unconstitutional per se reveals that, in each of them, the

decision rested on an adequate and independent state

grounds thereby evading certiorari review. The instant

case is therefore one of first impression in this Court and

should be resolved so that local communities may

implement reasonable amortization provisions as a way of

ridding themselves of nonconforming uses without fear

that they are skating on constitutional ice no thicker thana

summons.

B.

That the Indiana Supreme Court’s decision in this matter

will have serious ramifications on the ability of cities and

' While the Indiana Supreme Court did not specify whether its decision

was premised on the United States Constitution or the Indiana

Constitution, a comparison of relevant provisions from each document

makes it abundantly clear that only the federal constitution was at

issue. The state constitutional provision corresponding to the federal

due process clause is Article I, §12 which provides in pertinent part:

“(E] very man, for injury done to him in his person, property, or

reputation shall have remedy by due course of law”. (emphasis added).

Certainly the Indiana Supreme Court, being the final arbiter of the

state constitution, would not have overlooked the difference in

language if it had intended to decide the case on non-federal grounds.

It is significant to note that nowhere in the record or in the briefs did

respondents Rouse or Ailes cite Article I, §12.

6

towns to promote orderly community development cannot

be doubted when the dilemma posed by nonconforming

uses is considered. Early zoning thought discounted the

impact of nonconforming uses on the attainment of zoning

objectives since it was anticipated that such uses would

dwindle and disappear of their own accord. Note, Zoning

And The Amortization of Nonconforming Uses, 54 N.D.L.R.

231 (1977).

“(I]t was felt they would be few and likely to be

eliminated by the passage of time and restrictions on

their expansion. For these reasons and because it was

thought that to require immediate cessation would be

harsh and unreasonable, a deprivation of rights in

property out of proportion to the public benefits to be

obtained and, so, unconstitutional, and finally a red

flag to property users at a time when strong opposition

might have jeopardized the chance of any zoning,

most, if not all, zoning ordinances provided that lawful

uses existing on the effective date of the law could

er although such uses could not thereafter be

gun.”

Grant v. Mayor and City Council of Baltimore, (1957) 212

Md. 301, 129 A.2d 363 at 365.

However, contrary to the initial assumptions of zoning

advocates, it has become increasingly evident that pre-

existing nonconforming uses have no inherent tendency to

fade away. Comment, The Abatement of Pre-existing

Nonconforming Uses under Zoning Laws: Amortization, 57

N.W.U.L.R. 323 (1962). Despite numerous restrictions on

change, expansion, resumption and reconstruction, many

of these uses have not only continued to exist but have

prospered as never before under the artificial monopolies

bestowed on them by zoning laws. Rohan, Zoning and Land

Use Controls §41.04 (1983).

Their continued presence, though, has often exacted a

heavy toll on the community at large. In several instances,

7

nonconforming uses have reduced the effectiveness of

zoning, depressed property values and contributed to the

growth of urban blight. Comment, Conforming The

Nonconforming Use: Proposed Legislative Relief For A

Zoning Dilemma, 33 S.W.L.J. 855 (1979). An early survey

of nonconforming uses in Indiana communities reinforces

these conclusions:

“Over 50 per cent of the nonconforming neighborhood

businesses were closely abutted by substandard

dwellings. In excess of 30 per cent of the commercial

structures were ina state of disrepair or were adjoined

by utility or storage “shacks.” Inadequate parking and

loading facilities leading to traffic congestion, and

unwarranted accumulations of junk and trash were

also identifying markers of this use. Fifty-nine per

cent of the multi-family dwellings had traffic

problems which could be traced to inadequate parking

space. ... Ninety-one per cent of the industries caused

traffic congestion, and fifty-five per cent of them

contained unnecessary large quantities of waste and

junk....The tendency of adjoining owners to permit

their property to fall into disrepair can be traced to

these factors.”

See, Amortization and Performance Standards in Zoning

Regulations: Study of Existing Nonconforming Uses in an

Indiana Community, 30 Ind. U.L.R. 521, 524 (1955).

The failure of nonconforming uses to dissipate by natural

attrition led to the adoption of amortization as a means for

hastening their departure. Essentially, amortization

contemplates the compulsory termination of a nonconform-

ing use at the expiration of a specified period of time, which

period roughly corresponds to the useful economic life of

the nonconformity. See Wood, Zoning Ordinances

Requiring The Termination Of A Nonconforming Use, 1973

Institute on Planning, Zoning and Eminent Domain 23.

The theory behind amortization is based on the principle

that a property owner should be given time to recoup his

investment in property before he is forced to discontinue

the use without compensation. Rohan, Zoning and Land

Use Controls §41.04 (1983).

The technique of terminating nonconforming uses

through amortization has won a fair measure of judicial

approval in the United States. See 22 A.L.R.3d 1134 and

cases cited therein. The leading decision in this area, City of

Los Angeles v. Gage, (1954) 127 Cal. App.2d 442, 274 P.2d 34,

accurately reflects the position taken by the majority of

courts which have confronted the issue.

“The elimination of existing uses within a reasonable

time does not amount toa taking of property nor does it

necessarily restrict the use of property so that it cannot

be used for any reasonable purpose. Use of a

reasonable amortization scheme provides an equitable

means of reconciliation of the conflicting interests in

satisfaction of due process requirements. As a method

of eliminating the existing nonconforming uses it

allows the owner of the nonconforming use, by

affording an opportunity to make new plans, at least

partially to offset any loss he might suffer. The loss he

suffers, if any is spread out over a period of years, and

he enjoys a monopolistic position by virtue of the

zoning ordinance as long as he remains. If the

amortization period is reasonable the loss to the owner

may be small when compared with the benefit to the

public. Nonconforming uses will eventually be

eliminated. A legislative body may well conclude that

the beneficial effect on the community of the eventual

elimination of all nonconforming uses by a reasonable

amortization plan more than offsets individual losses.”

274 P.2d at 44.

Undoubtedly influenced by the approving nod given to

this approach, a substantial number of municipalities have

adopted ordinances requiring amortization. According toa

9

nationwide study conducted in 1971 by the American

Society of Planning Officials’ (hereinafter referred to as

the “ASPO report”), appoximately 33% of the 459

communities responding had enacted amortization

provisions. Similarly, a recent survey of plan commissions

across Indiana (hereinafter referred to as the “Indiana

survey”) indicates that over 31% of the respondents have

amortization regulations in place.* Interestingly enough, of

those plan commissions without amortization, 51% stated

that they would consider its implementation---if the power

to amortize were upheld as constitutional.

These figures demonstrate that there is a significant

groundswell of support for amortization and underscore

the impact of the instant decision on zoning enforcement.

The ruling of the Supreme Court of Indiana that all

amortization ordinances are per se unconstitutional under

the Due Process clause of the Fourteenth Amendment

necessarily invalidates a common zoning technique for

eliminating nonconforming uses. Without it, municipalities

are relegated to traditional zoning restrictions on change of

use, resumption, increase of size and reconstruction which

have largely proven to be unsuccessful.

Put another way, the denial of certiorari in this case

would sweep away what has been widely accepted as the

only viable means for terminating nonconforming uses.

City of Los Angeles v. Gage, (1954) 127 Cal.App.2d 442, 274

* Scott. The Effect of Nonconforming Land-Use Amortization, American

Society of Planning Officials Report No. 280 (1972).

In connection with the preparation of this petition, the Metropolitan

Development Commission of Marion County. Indiana mailed

questionnaires to over 200 plan commissions in the state. of which

there was a 50% rate of return. The purpose of this survey was to

determine the extent to which amortization ordinances have been

adopted in Indiana as well as to elicit opinions and information based

on practical experience on the effectiveness of amortization in dealing

with nonconforming uses.

10

P.2d 34; Board of Supervisors of Cerro Gordo County v.

Miller, (1969) Ia., 170 N.W.2d 358; Grant v. Mayor and City

Council of Baltimore, (1957) 212 Md. 301, 129 A.2d 363;

Spurgeon v. Board of Commissioners of Shawnee County,

(1957) 181 Kan. 1008, 317 P.2d 798. According to the results

of the Indiana survey, 42% of the plan commissions queried

responded that amortization was a very effective means for

eliminating nonconforming uses while 29% opined that it

was somewhat effective. Turning to the ASPO report, the

percentages were evenly distributed between those

reporting excellent or good enforcement experience (34%)

and those indicating poor experience (33%).’

Amortization has been most effective with respect to

billboards and open land uses. 4 Rathkopf, The Law of

Zoning and Planning §51.09(4) (1983). The ASPO report®

reflects that 54% of the responding communities reported

amortizing signs; 25% reported amortizing land and 17%

reported amortizing junkyards. While these uses have

greater visual and audible impacts upon neighboring uses

than do other nonconformities, they are the ones least

vulnerable to restrictions upon resumption after

discontinuance, restoration after destruction by fire, flood

or other fortuitous means and are seldom abandoned.

Rathfopf, supra §51.09(1). Unless amortization is upheld as

a proper exercise of the police power under the Fourteenth

Amendment, these objectionable uses will never be

eliminated.

OF

Also compelling the issuance of a writ of certiorari in this

case is the fact that this Court has not heretofore addressed

the substantial federal question raised by the decision of

the Supreme Court of Indiana which, it should be added, is

* Scott, supra, p. 8.

* Ibid, p. 8.

11

in direct conflict with the overwhelming weight of

authority on the matter. Of the few states which have

followed the minority view that amortization is per se

invalid, all of them have rested on an adequate and

independent state grounds and thus have evaded certiorari

review. Compare, Hoffman v. Kinealy, (1965) Mo., 389

S.W.2d 745 (amortization constitutes taking of private

property for public use without just compensation in

violation of state constitutional provision); City of Akron v.

Chapman, (1953) 160 Ohio St. 382, 116 N.E.2d 697

(amortization impinges upon the due process clauses of

both the state and federal constitutions); United

Advertising Corp. v. Borough of Raritan, (1952) 11 N.J. 144,

93 A.2d 362 (amortization is contrary to zoning statute

expressly permitting the continuance of nonconforming

uses); DeMull v. City of Lowell, (1962) 368 Mich. 242, 118

N.W.2d 232 (state statute prohibits termination of

nonconforming uses by amortization).

By contrast, Indiana is the first and only state to have

invalidated amortization on federal due process grounds

alone. This posture places it squarely in conflict with the

prevailing view which sanctions the technique of

amortization as a valid exercise of the police power under

the Due Process clause of the Fourteenth Amendment,

provided that on balance the public benefit outweighs the

private injury and the time allowed for termination is

reasonable.

See, Art Neon Co. v. City and County of Denver, (10th Cir.

1973) 488 F.2d 118; City of Los Angeles v. Gage, (1954) 127

Cal.App.2d 442, 274 P.2d 34; Board of Supervisors of Cerro

Gordo County v. Miller, (1969) Ia., 170 N.W.2d 358;

Spurgeon v. Board of Commissioners of Shawnee County,

(1957) 181 Kan. 1008, 317 P.2d 798; State ex rel. Dema

Realty Co. v. Jacoby, (1929) 168 La. 752, 123 So. 314;

Inhabitants of the Town of Boothbay v. National Advertising

12

Company, (1975) Me., 347 A.2d 419; Wolf v. City of Omaha,

(1964) 177 Neb. 545, 129 N.W.2d 501; Harbison v. City of

Buffalo, (1958) 4 N.Y.2d 553, 152 N.E.2d 42; State v. Joyner,

(1975) 286 N.C. 366, 211 S.E.2d 320; Rives v. City of

Clarksville, (1981) Tenn.App., 618 S.W.2d 502; and Swain

v. Board of Adjustment of City of University Park, (1968)

Tex.Civ.App., 433 S.W.2d 727.°

If the parameters of the police power under the

Fourteenth Amendment are broad enough to sustain

reasonable amortization provisions in California, Texas,

Kansas, New York and numerous other localities, then a

fortiori they are inclusive enough to uphold such

ordinances in Indiana as well. Surely the reach of the

federal Due Process clause does not stop at the Indiana

border. The authority of municipalities to employ

amortization as a means for phasing out nonconforming

uses and the attendant rights of the owners of

nonconformities to due process of law should not be

dependent upon the state or circuit in which the question

arises. Such a result would be inimical to the notion of due

process.

D.

The Petitioner herein, Ripley County Area Plan

Commission, has cited several reasons in support of its

assertion that this case is “cert-worthy”. Among them is the

* Various other courts have upheld amortization ordinances, if

reasonable, without isolating the specific federal or state

constitutional provision involved, upon incantation of the phrase “due

process of law”. Standard Oil Co. v. City of Tallahassee, (5th Cir. 1950)

183 F.2d 410; Naegele Outdoor Advertising Company of Minnesota v.

Village of Minnetonka, (1968) 281 Minn. 492, 162 N.W.2d 206;

LaChapelle v. Town of Goffstown, (1967) 107 N.H. 485, 225 A.2d 624;

Beals v. County of Douglas, (1977) Nev., 560 P.2d 1373; State +.

Sanguinetti, (1982) Vt., 449 A.2d 922: City of Seattle v. Martin, (1959)

54 Wash.2d 541, 342 P.2d 602.

13

fact that amortization is crucial to the efforts of

municipalities seeking to terminate nonconforming uses.

“The issue of the amortization of nonconforming uses

is of significant consequence to local planning and

zoning efforts in this state. An absolute prohibition

against amortization will defeat the purpose of zoning

efforts, for the gradual elimination of a use not

compatible with the public welfare could not be

accomplished.”!°

Equally important in persuading the court to grant

certiorari review is the fact that this case calls into question

the validity, under the United States Constitution, of a

zoning technique common to many communities

nationwide. A definitive opinion on this subject would lay to

rest any lingering doubts regarding the constitutionality of

this zoning device and resolve the split of authority which

has arisen by virtue of the Indiana Supreme Court’s

decision in this case. SL

Hunter, J: dissent, App. A-14.

14

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Supreme

Court of Indiana.

Respectfully submitted,

Stephen T. Taylor

EATON & TAYLOR

123 South Main Street

P. O. Box 275

Versailles, Indiana 47402

(812) 689-5111

Mark Dall

Assistant Corporation Counsel

City-COUNTY LEGAL DIVISION

1601 City-County Building

Indianapolis, Indiana 46204

(317) 236-4055

Counsel for Petitioner

15

APPENDIX

APPENDIX A

IN THE

SUPREME COURT OF INDIANA

RALPH D. AILES and

ELIZABETH J. AILES,

Appellants,

We

DECATUR COUNTY AREA

PLANNING COMMISSION and

Decatur County Board

of Zoning Appeals,

Supreme Court

No. 583 S 171

Consolidated Cause No.

1-381 A 98 in the

Court of Appeals

Appellees,

and

MELVIN T. RousE,

Appellant,

Vv.

RIPLEY COUNTY AREA

PLAN COMMISSION,

Appellee.

ttt

>

APPEALS FROM THE DECATUR CIRCUIT COURT

and the RIPLEY CIRCUIT COURT

The Honorable John A. Westhafer, Judge

The Honorable Henry A. Pictor, Judge

Cause No. C-79-137

Cause No. C-77-128

PIVARNIK, J.

This cause comes to us on a petition to transfer from the

Fourth District Court of Appeals. Transfer is sought by

Appellants in the Ceurt of Appeals, who were Defendants

in the trial court. Appeal was consolidated challenging the

constitutionality of amortization provisions in the zoning

ordinances of two different counties, both of which require

the discontinuance of pre-existing lawful non-conforming

uses of real estate upon the expiration of a specific number

of years. After injunctions were issued against Appellants

Ralph and Elizabeth Ailes and Rouse, enjoining them from

operating junkyards at their residences, both the Aileses

and Rouse brought independent Motions in their own

counties for relief from their respective judgments

pursuant to Ind. R. Tr. P. 60(B), alleging the applicable

amortization provision constituted an unconstitutional

taking of property and an unreasonable exercise of police

power. Both Motions were denied and the parties appealed,

raising only the constitutional issue for appellate

consideration. Transfer is granted, the opinion of the Court

of Appeals is vacated, and the judgments of the trial courts

are reversed.

Both appeals were brought on agreed statements of the

records and the facts in both cases are undisputed. The

Court of Appeals properly set out the facts pertinent to the

issue which we adopt for purposes of this opinion as follows:

A-2

“FACTS

Both appeals come before us on agreed statements of

the records, pursuant to Ind. Rules of Procedure,

Appellate Rule 7.3. The facts in both causes are

undisputed. The Aileses’ real estate, on which they also

resided, had been used as a junkyard and automobile

wrecking yard since 1967 or 1968, before the effective

date of the Decatur County zoning ordinance enacted

in 1975 and continued uninterrupted until the date of

suit in 1979. In 1975, Decatur County zoned an area,

which included the Aileses’ residence, for one and two

family residences only and prohibited the maintenance

of junkyards (Footnote omitted) or automobile

wrecking yards (Footnote omitted) within that

district. The Aileses do not dispute the use of their real

estate in the current manner is proscribed by the

ordinance, and the trial court so found. (Footnote

omitted.) The trial court also found the use of the real

estate constituted a lawful nonconforming use which

should have been abated within three years of the

ordinance’s enactment in 1975 under the following

amortization provisions:

‘3.23. Any nonconforming use of land not involving

any structure,...may be continued for a period not to

exceed three years after enactment of the ordinance,

whereupon such nonconforming use shall cease or

structure shall be removed.

3.24. Any building or structure devoted to a

nonconforming use with a fair market value of less

than $500.00 as determined by the Board of Appeals,

may be continued for a period not to exceed three years

after enactment of the ordinance, whereupon such

nonconforming use shal! cease and thereafter such

building or structure shal! be removed or changed toa

conforming use.’

On September 18, 1979 the trial court therefore

issued an injunction against the use of the property as

A-3

a junkyard and .ordered removal of the offending

materials. The Aileses moved for relief from the

judgment challenging the constitutionality of the

amortization provisions. The trial court overruled

their motion. On appeal, both parties state there is no

issue of fact but only an issue of law which questions

whether an amortization provision eliminating a ‘non-

conforming, pre-existing, uninterrupted, otherwise

lawful use’ of real estate is a taking of property without

due process and an unreasonable exercise of police

power.

Rouse’s appeal presents a similar record. Rouse

began using his residential real estate as a junkyard in

approximately 1953. In 1970, Ripley County zoned the

district including Rouse’s real estate for medium

density single and two-family residences, where

junkyards (Footnote omitted) are not permitted.

Rouse does not challenge the trial court’s finding that

he is maintaining a junkyard in violation of the

ordinance, nor does he challenge the applicability of

the following amortization provision contained in

Section 3.5 of the ordinance:

‘The lawful use of a building or premises existing

at the time of passage of the ordinance, may be

continued although such use does not conform to

all the provisions of this ordinance or amendments

to this ordinance except as hereinafter provided.

(g) Any nonconforming open use of land shall be

discontinued within (5) years from the date of

passage of this ordinance.’ [Footnote omitted].

On August 18, 1978 the trial court issued an injunction

ordering removal of all junked equipment and

automobiles from Rouse’s real estate. Rouse moved for

relief from the judgment alleging the amortization

provision was unconstitutional. The trial court’s

A-4

subsequent finding that the challenged provision was

not an unconstitutional taking of property without due

process of law is the only question raised in Rouse’s

appeal.”

Appellant-Petitioners Ailes and Rouse challenge the

respective amortization provisions as an unconstitutional

taking of property and as an unreasonable exercise of

police power. Petitioners are correct on this issue.

The precise issue of amortization as a means of phasing

out non-conforming uses by zoning regulation has not been

directly addressed in this jurisdiction. In approving less

drastic measures of phasing out, however, strong

inferences have been made that such a direct approach

would not be acceptable. Metropolitan Development

Commission of Marion County v. Marianos, (1980) ——

Ind. . 408 N.E.2d 1267; Misner v. Presdorf, (1981) ——

Ind.__., 421 N.E.2d 684, transfer denied; Jacobs v.

Mishawaka Board of Zoning Appeals, (1979) ___ Ind. App.

___.., 395 N.E.2d 834, trans. denied; Dandy Co., Inc. v. Civil

City of South Bend, (1980) __ Ind. App. —_, 401 N.E.2d

1380. Typically the provisions of the zoning ordinances

upheld in those cases and generally approved by this Court

and the Court of Appeals allowed a use which was non-

conforming to the area to continue with the limitations that

exercise of the use could not be expanded or increased

beyond its status at the time of the passage of the ordinance,

exercise of the use could noi be reinstated after there was

an abandonment of it in the area by the original user or one

successor to it, destruction of the enclosure housing the

exercise of the use such as destruction by fire, authorized

replacement again to the level existing at the time of

enactment of the ordinance and in some cases replacement

of that particular non-conforming use with another non-

conforming use that fei] in the same class of uses as the

original non-conforming use. By this method there was a

A-5

gradual phasing out of non-conforming uses without taking

from the user the right to exercise a use that was lawful

prior to the enactment of the ordinance so long as all of the

conditions and limitations were met. Metropolitan

Development Commission, supra; Jacobs, supra; Misner,

supra.

In Jacobs, the Court of Appeals, in discussing the

methods of phasing out non-conforming uses by

municipalities in their zoning ordinances, stated:

“Zoning ordinances contain provisions exempting

existing non-conforming uses from the use restrictions

because the right of a municipality to enact zoning

restrictions is subject to the vested property interest

acquired prior to the enactment of the zoning

ordinances. An ordinance prohibiting any continuation

of an existing lawful use within a zoned area is

unconstitutional as a taking of property without due

process of law and as an unreasonable exercise of

police power.”

Jacobs, ___. Ind. at___., 395 N.E.2d at 836.

As the Court of Appeals pointed out in Jacobs, a number

of jurisdictions have taken this position and found

amortization provisions in zoning ordinances respecting

non-conforming uses are unconstitutional per se.

The Court of Appeals points out in the instant case that

though there is a divergence of opinion among the various

jurisdictions, the greater weight of authority supports the

use of amortization provisions if they are reasonable,

usually weighing the private loss against the public gain in

each case. See Annot., 22 ALR 3rd 1134 §§3 & 4 (1968 and

Supp. 1981) and cases cited therein. The factors to be

considered in those approving amortization appear to be

the length of time given to phase out the use, the type of

business or endeavor exercised, and the nature of the

A-6

business or use and its relationship to the neighborhood or

area involved. From a constitutional standpoint, it does not

appear that a resolution of any of these factors can make

that reasonable which is basically and from the outset

unreasonable. We must bear in mind that we are dealing

with a use of a person’s private property that was

continuing and lawful at the time of the passage of the

ordinance. It became unlawful only by reason of the

provisions of the ordinance. The nature of the business, its

relationship to the rest of the area, the method in which it is

run, its potential success or failure based on the income or

lack thereof, are irrelevant considering the narrow issue

drawn in the facts before us.

It was suggested in both of the cases involving the Aileses

and Rouse, that their premises were nothing more than

junk piles, that it was questionable if any business was

conducted there since there was little evidence of any

income to them, that they represented a blight on the

community and the loss to them wouid be negligible

compared to the gain of the public in general and more

particularly their neighbors. These factors could not be

considered in this issue. These actions in both cases of the

Aileses and Rouse were brought only for enjoining zoning

ordinance violations and were based solely upon allegations

that Appellants’ use of their real estate was in violation of

the provisions of the zoning ordinances. There is no

allegation nor implication in these causes that the real

estate of either of the Appellant-Petitioners here

constituted a nuisance. As Petitioners point out, the

complaints contain absolutely no allegations that

Appellants’ use of their real estate jeopardize the health

and safety of their neighbors and therefore constituted a

nuisance or in any other manner constituted a nuisance. If

either community of Decatur County or Ripley County has

evidence that the use of the properties of the Aileses and

A-7

Rouse constitute a nuisance, a blight, or a danger to the

health and safety of the community, they have open to them

the remedy of pursuing enjoining of petitioners’ activities

as a nuisance. That issue is not before us here.

As we consistently have held, it is permissible for a

community to provide in its zoning ordinances that the

lawful use of land that exists at the time of the passage of

the ordinance is no longer permissible under the terms of

the ordinance, may be continued subject to the provisions

that no non-conforming use shall be enlarged or increased

or extended to occupy a greater area of land than was

occupied at the effective date or adoption of the ordinance

or amendment, that once abandoned, the use may not be

reinstated or the use may be replaced by one of the same or

similar nature and not more restrictive than the use

employed. We hold, however, that an ordinance prohibiting

any continuation of an existing lawful use within a zoned

area regardless of the length of time given to amortize that

use is unconstitutional as the taking of property without

due process of law and an unreasonable exercise of the

police power. The opinion of the Court of Appeals is

vacated, and the judgments of the trial courts are reversed

with instructions to the trial courts to vacate the respective

injunctions and orders against the petitioners and enter

judgment in favor of these petitioners.

Givan, C.J., and Prentice, J., concur.

DeBruler, J., concurs in result with separate opinion.

Hunter, J., dissents with opinion.

IN THE

SUPREME COURT OF INDIANA

RALPH D. AILES and

ELIZABETH J. AILES,

Appellants,

Vv.

DECATUR COUNTY AREA No. 583 S 171

PLANNING COMMISSION and

DECATUR COUNTY BOARD

OF ZONING APPEALS,

Appellees,

MELVIN T. ROUSE,

Appellant,

V.

RIPLEY COUNTY AREA

PLAN COMMISSION,

Nm mmm me ee ee eee ee ee ee”

Appellee.

ON PETITION TO TRANSFER

DEBRULER, J.—Concurring in Result

The first step in determining the constitutionality of a

statute or ordinance is to extract its meaning, purpose and

A-9

scope. Board of Com'rs. v. Kokomo City Plan Commission,

(1975) 263 Ind. 282, 330 N.E.2d 92. In pertinent part, these

ordinances seek to subject a particular type of established

non-conforming use to extinguishment by amortization.

The Decatur County ordinance applies the amortization

technique to uses of “land not involving any structure” and

to “Any building or structure. ..witha fair market value of

less than $500.00”. The Ripley County ordinance applies it

to “open use of land” and within the terminology utilized,

“land” is either hopelessly ambiguous or it refers to an area

without related and appurtenant buildings. At the outset, I

am led to the conclusion that neither ordinance is intended

to subject an established non-conforming use of a yard

surrounding a private residence to extinguishment by

amortization. Accordingly, I would vote to reverse these

judgments on this legal basis, and await a more

appropriate occasion to deal with the constitutional issues,

even though the parties may have limited the appeal to

them.

IN THE

SUPREME COURT OF INDIANA

RALPH D. AILES and

ELIZABETH J. AILES,

Appellants, (Defendants

below),

V.

DECATUR COUNTY AREA

PLANNING COMMISSION and

DECATUR COUNTY BOARD

OF ZONING APPEALS,

Supreme Court No.

583 S 171

Appellees, (Plaintiffs

below),

and Consolidated Cause

No. 1-381 A 98

MELVIN T. ROUSE, in the Court

of Appeals

Appellant, (Defendant

below),

V.

RIPLEY COUNTY AREA

PLAN COMMISSION,

Appellee. (Plaintiff

below).

mm me ee ee ee ee Se” me Se” Smee” ee” ee” meee” ee” eet Se” me” meee” et” ee” eee” ee” et” ee”

A-1l

APPEAL FROM THE DECATUR CUICUIT COURT

THE HONORABLE JOHN A. WESTHAFER, JUDGE

and

APPEAL FROM THE RIPLEY CIRCUIT COURT

THE HONORABLE HENRY A. PICTOR, JUDGE

HUNTER, J.—Dissenting.

I must respectfully dissent from the majority opinion.

The ultimate purpose of zoning regulations is to promote

the public’s health, safety, convenience, and welfare by

regulating the uses of private property within certain

areas. This has consistently been recognized as a legitimate

and constitutionally valid exercise of the state’s police

power. Field v. Area Plan Commission of Grant County,

Tnd., (1981) __— Ind.App. —_, 421 N.E.2d 1132. There

must necessarily be some private loss whenever

regulations involving the general public welfare are

enacted. But courts have almost universally adopted a

balancing approach by weighing the private loss against

the public gain in each individual case and have

consistently upheld restrictive requirer.ents when they

have proven to be reasonable under the particular facts and

circumstances of the case. Bird +. Delaware Muncie

Metropolitan Plan Commission, (1981) —— Ind. App. ——_.

416 N.F.2d 482.

Whi'. zoning legislation may lower the property value or

otherwise create hardship for an individual property

owner, this loss must be measured against the public’s gain,

and the individual owner is compensated by sharing in the

general public benefit of living in a reasonably regulated

society. The decision to terminate nonconforming uses, and

the method to be used, should be made by the appropriate

legislative body and include a balancing of the loss by the

A-12

individual with the public good sought to be achieved. Our

standard on review only needs to be the test of

“reasonableness.” See Art Neon Co. v. City and County of

Denver, (10th Cir. 1973) 488 F.2d 118, and cases cited

therein.

The issue of the amortization of nonconforming uses is of

significant consequence to local planning and zoning

efforts in this state. An absolute prohibition against

amortization will defeat the purpose of zoning efforts, for

the gradual elimination of a use not compatible with the

public welfare could not be accomplished. I fee! that it is

obvious that the constitutionality of any fixed period for

amortization in each case would depend upon the nature of

the nonconforming use, the extent of the private loss, and

the amount of time necessary to liquidate the investment in

the nonconforming use. These factors must be balanced in

each case with the public benefit that will be gained, as

measured by the impact of the cessation of the

nonconforming use on the environment, health, safety, and

welfare of the public. This balancing method is the only

way to accord respect to the competing public and private

interests.

The case of Jacobs v. Mishawaka Board of Zoning

Appeals, (1979) ___. Ind. App. , 395 N.E.2d 834, is not

controlling on the issue of amortization of nonconforming

uses as that case dealt with an alleged erpansion of a

nonconforming use; it did not involve an amortization

period. While it may be true as pointed out in that case that

an ordinance prohibiting any continuation of an existing

lawful use is unconstitutional, amortization is a method for

the gradual elimination of the nonconforming use and does

not constitute an immediate restriction toa vested property

interest. The rapidity of the elimination of the

nonconforming use would depend upon the length of the

period of amortization and if the pericd were too short in

A-13

duration to accommodate the property owner, the period

would be unconstitutional as applied and the individual's

due process rights are thus protected. Amortization

periods are not always “rapid” and come in many different

lengths and types. The case-by-case balancing method of

review is as necessary in amortization Cases as it is in other

areas of zoning problems.

l agree with Judge Miller’s reasoning and conclusions in

the instant case:

“| TJhe greater weight of authority supports the use of

amortization provisions if they are reasonable, usually

weighing the private loss against the public gain in

each case. See Annot., 22 A.L.R. 3d 1134 §§ 3, 4(1968 &

Supp. 1981).

“We find this latter approach to be the more well-

reasoned view under the circumstances before us. The

absolute prohibition of amortization may unnecessarily

impede the legitimate goal of zoning to eliminate

nonconforming uses in the public interest.

** *

“In theory, amortization provides a grace period in

which the user may continue the nonconforming use,

amortize the investment and make future plans. The

amortization period may well provide the user with

more time than necessary to realize the economic life

of the nonconforming use. This factor is not

dispositive, however, and may have no applicability to

the open use of land, as opposed to the use of a

structure. Several elements must therefore be

considered in determining the reasonableness of a

given amortization provision as applied to particular

circumstances. For example, the public benefit may

be determined by considering the offensiveness of the

nonconforming use in view of the surrounding

A-14

neighborhood; the private loss may be measured by

the value of the nonconforming use, the damages

incurred by compliance including the hardship

imposed on the user, and the length of time allowed for

amortization. Annot., 22 A.L.R. 3d 1134, supra.

“In the record before us, there is no evidence

indicating the degree, if any, of hardship or loss to the

landowners which will be occasioned by compliance

with the zoning ordinances.

*_* *

“Neither the Aileses nor Rouse present a record of any

evidence on these factors which would allow this Court

to balance the interests involved and determine the

reasonableness of the amortization provisions as

applied to their property. On the other hand, we are

confronted with the inherently debilitating effects of

maintaining a junkyard in a residential neighborhood

and the resultant legitimate interests of the state in

eliminating nonconforming uses for the public

welfare. We find the amortization provisions at’issue

in the instant case are not unconstitutional per se.

“We do not hold all amortization provisions are

constitutional per se or as applied under all

circumstances. Even an amortization provision valid

on its face may be found unconstitutional as applied to

a particular parcel of real estate after weighing the

pertinent factors, sume of which are enumerated

above. The rule of reasonableness must prevail,

considering the public gain versus the private loss. As

in all zoning cases, each case must be decided on its

own facts. Nelson v. Board of Zoning Appeals of

Indianapolis, (1959) 240 Ind. 212, 162 N.E.2d 449;

Jacobs v. Mishawaka Board of Zoning Appeals,

supra.” Ailes v. Decatur County Area Planning Com'n,

(1982) Ind.App. ——, 437 N.E.2d 1375, 1379-80

| footnotes omitted }.

I would deny transfer and affirm the judgment of the

trial court.

A-15

APPENDIX B

STATE OF INDIANA

CLERK OF THE SUPREME COURT

AND COURT OF APPEALS

MARJORIE H. O’LAUGHLIN, CLERK

217 STATE HOUSE

INDIANAPOLIS, 46204

TELEPHONE 2382-1930

No. 583 S 171

Ralph D. Ailes, et al v.

Decatur County Area Planning Comm.

You are hereby notified that the Supreme Court has on

this day denied “Appellee’s Petition for Rehearing” of

Ripley County Area Plan Commission. Givan, C.J. Hunter,

J., would grant. Denied “Petition for Rehearing” of

Decatur County Area Plan Commission the Decatur

County Board of Zoning Appeals. Givan, C. J., Hunter, J.

would grant. Granted Metropolitan Development

Commission of Marion County, Indiana’s “Motion for Leave

to File Brief of An Amicus Curiae”. Given, C. J., Prentice,

J., would deny.

Please acknowledge receipt of this notice in order that

our records may show that you have been notified of this

action.

B-1

Witness my name and the seal of said Court, this 4th day

of August, 1983.

s/ Marjorie H. O'Laughlin

Clerk Supreme Court and Court of

Appeals

August 3, 1983

No. 583 S$ 171

Jack R. Shields, Batesville

William 0. Smith & George R. Watts,

Greensburg

Stephen T. Taylor, Versailles

John P. Ryan, Indpls.

Sue Ann Hartig, Evansville

Charles A. Ruchman, Gary

Bruce O. Boxberger, Ft. Wayne

B-2

APPENDIX C

RALPH D. AILES and ELIZABETH J. AILES,

Appellants (Defendants Below),

V.

DECATUR COUNTY AREA PLANNING

COMMISSION and Decatur County

Board of Zoning Appeals,

Appellees (Plaintiffs Below).

and

MELVIN T. ROUSE,

Appellant (Defendant Below),

Vv.

RIPLEY COUNTY AREA PLAN

COMMISSION,

Appellee (Plaintiff Below).

No. 1-381A98

Court of Appeals of Indiana,

Fourth District.

July 28, 1982.

MILLER, Presiding Judge.

This is a consolidated appeal challenging the

constitutionality of amortization provisions in the zoning

ordinances of two different counties, both of which require

the discontinuance of pre-existing lawful nonconforming

uses of real estate upon the expiration of a specific number

of years. After injunctions were issued against appellants

(Ralph and Elizabeth Ailes and Rouse) enjoining them

from operating junkyards at their residences, both the

Aileses and Rouse brought independent motions for relief

from their respective judgments, pursuant to Ind. Rules of

Procedure, Trial Rule 60(B), alleging the applicable

amortization provision constituted an unconstitutional

C-1

taking of property and an unreasonable exercise of police

power. Both motions were denied, and the parties appeal

raising only the constitutional issue for our consideration. !

We affirm.

FACTS

Both appeals come before us on agreed statements of the

records, pursuant to Ind. Rules of Procedure, Appellate

Rule 7.3. The facts in both causes are undisputed. The

Aileses’ real estate, on which they also resided, had been

used as a junkyard and automobile wrecking yard since

196° or 1968, before the effective date of the Decatur

County zoning ordinance enacted in 1975 and continued

uninterrupted until the date of suit in 1979. In 1975,

Decatur County zoned an area, which included the Aileses’

residence, for one and two family residences only and

prohibited the maintenance of junkyards? or automobile

' On appeal Rouse adopted the Aileses’ brief. Each county planning

commission filed a separate appellee’s brief. Separate reply briefs

were filed by Rouse and the Aileses.

“ Section 1.18 of the Decatur County Comprehensive Area Plan and

Zoning Ordinance of 1975 defines “junkyard” as: “An open area or

fenced in enclosure, where used or second hand materials are bought,

sold, exchanged, stored, baled, packed, disassembled or handled

including but not limited to appliances, scrap iron and other metals,

paper, rags, rubber tires, and bottles. A junk yard includes an

automobile wrecking yard, but does not include uses established

entirely within enclosed buildings.” The A ileses’ real estate includes a

detached garage-like structure which the parties agree is in a state of

disrepair and has a negligible fair market value. In its findings of fact,

the trial court found the Aileses were storing the offending material

both inside and outside this structure, and that the structure itself

constituted junk. Although the Aileses raise an objection to this

characterization of the “structure.” we note the amortization

provisions at issue also require discontinuance of prior nonconforming

uses of structures as well as open land. See 3.24 of the Ordinance

quoted infra.

C-2

wrecking yards* within that district. The Aileses do not

dispute the use of their real estate in the current manner is

proscribed by the ordinance, and the trial court so found.‘

The trial court also found the use of the real estate

constituted a lawful nonconforming use which should have

been abated within three years of the ordinance’s

enactment in 1975 under the following amortization

provisions:

“3.23. Any nonconforming use of land not involving

any structure, ...may be continued for a period not to

exceed three years after enactment of the ordinance,

whereupon such nonconforming use shall cease or

structure shall be removed.

3.24. Any building or structure devoted to a

nonconforming use with a fair market value of less

than $500.00 as determined by the Board of Appeals,

may be continued for a period not toexceed three years

after enactment of the ordinance, whereupon such

nonconforming use shall cease and thereafter such

building or structure shall be removed or changed toa

conforming use.”

* Section 1.7 of the Ordinance defines an “automobile wrecking yard”

s: “Any area where two or more motor vehicles, not in running

condition, or parts thereof. are stored in the open and are not being

restored to operation: or any land, building or structure used for the

wrecking or storing of such motor vehicles, or parts thereof, not in

running condition.”

The trial court specifically found: “Defendants are storing on their

property, both out in the open and within a structure: (a) Two or more

motor vehicles (including boats, vans, trucks, cars, and tractors), not

in running condition, or parts thereof: (b) Various used and second

hand materials, debris, junk. trash, engines and motors. barrels, parts

of appliances, scrap metal, rags, broken bottles, garbage. salvaged

items, waste materials, used tires, and other unsightly objects.” There

was no request in the record for specific findings of fact.

C-3

On September 18, 1979 the trial court therefore issued an

injunction against the use of the property as a junkyard and

ordered removal of the offending materials. The Aileses

moved for relief from the judgment challenging the

constitutionality of the amortization provisions. The trial

court overruled their motion. On appeal, both parties state

there is no issue of fact but only an issue of law which

questions whether an amortization provision eliminating a

“non-conforming, pre-existing, uninterrupted, otherwise

lawful use” of real estate is a taking of property without due

process and an unreasonable exercise of police power.

Rouse’s appeal presents a similar record. Rouse began

using his residential real estate as a junkyard in

approximately 1953. In 1970, Ripley County zoned the

district including Rouse’s real estate for medium density

single and two-family residences, where junkyards’ are not

permitted. Rouse does not challenge the trial court’s

finding that he is maintaining a junkyard in violation of the

ordinance, nor does he challenge the applicability of the

following amortization provision contained in Section 3.5 of

the ordinance:

“The lawful use of a building or premises existing at

the time of passage of the ordinance, may be continued

although such use does not conform to all the

provisions of this ordinance or amendments to this

ordinance except as hereinafter provided.

* The record does not contain a copy of the definition of “junkyard”

under the Ripley County Zoning Ordinance- Master Plan Ordinance of

1970. However, in its statement of facts, the Ripley Commission

asserts: “The Ordinance defines junkyard as a place usually outdoors,

where waste or discarded used property other than organic matter is

accumulated and/or stored and is or may be salvaged for reuse or

resale, including but not limited to, one or more unlicensed or

inoperable motor vehicles, or farm machinery or equipment of any

kind.” In his reply brief, Rouse adopted the Commission's statement of

facts.

C-4

(g) Any nonconforming open use of land shall be

discontinued within (5) years from the date of passage

of this ordinance.”

On August 8, 1978 the trial court issued an injunction

ordering removal of all junked equipment and automobiles

from Rouse’s rea! estate. Rouse moved for relief from the

judgment alleging the amortization provision was

unconstitutional. The trial court’s subsequent finding that

the challenged provision was not an unconstitutional

taking of property without due process of law is the only

question raised in Rouse’s appeal.

DECISION

The Aileses and Rouse challenge the respective

amortization provision as an unconstitutional taking of

property and as an unreasonable exercise of police power.

It is well established, however, that reasonable zoning

regulations are a proper exercise of police power and are

not unconstitutional merely because they regulate the uses

of private property. Town of Homecroft v. Macheth, (1958)

238 Ind. 57, 148 N.E.2d 563; Field v. Area Plan

Commission of Grant County, (1981) Ind.App., 421 N.E.2d

1132; Metropolitan Board of Zoning Appeals v. Sheehan

Construction Co., (1974) 160 Ind.App. 520, 313 N.E.2d 78.

The ultimate purpose of zoning regulations is to confine

certain classes of uses and structures to specific areas,

Jacobs v. Mishawaka Board of Zoning Appeals, (1979)

Ind.App., 395 N.E.2d 834, thereby insuring and promoting

the public’s health, safety, convenience and welfare. Board

of Zoning Appeals of New Albany v. Koehler, (1963) 244 Ind.

* There is no structure involved in Rouse’s use of his property as a

junkyard.

C-5

504, 194 N.E.2d 49. It is the express goal of zoning

legislation to encourage enactment of zoning ordinances “to

the end that highway systems be more carefully planned,

that new communities grow only with adequate street,

utility, health, educational and recreational facilities; that

the needs of agriculture, industry, and business be

recognized in future growth, [and] that residential areas

provide healthy surroundings for family life....”

(Emphasis added.) Ind.Code 18-7-4-1 et seg., repealed by

Acts 1974, P.L. 75, §3; 1978 P.L. 95, §4, 1979 P.L. 178 §164

and substantially reenacted at Ind.Code 36-7-4-201. To

accomplish these objectives, a zoning regulation may

control the use of land and structures in a particular

locality, but it must be within the limitations imposed by

statutory and constitutional provisions, and it must havea

real and substantial relation to the public health, safety, or

general welfare. Field v. Area Plan Commission of Grant

County, supra, at 1138 quoting 30 I.L.E. Zoning §8 at 647

(1960); accord 101 C.J.S. Zoning §54 (1958).

In the instant case, we are specifically concerned with the

zoning of residential areas and the regulation of prior

nonconforming uses. It is well settled that zoning of family

residential areas bears a substantial relationship to the

public safety and general welfare. Field v. Area Plan

Commission of Grant County, supra; Antrim v. Hohlt,

(1952) 122 Ind.App. 681, 108 N.E.2d 197. Exclusion of

commercial and industrial uses of land and structures in

residential areas ensures the quiet of natural surroundings

and vegetation, and decreases the risk of various

annoyances from competing usages. Antrim v. Hohit,

supra. We have also previously recognized the inherent

rationale for excluding junkyards specifically from

residential zones:

“(The maintenance of a junkyard in a residential

area| may well destroy the value of [the] neighbors’

C-4

property, provide an attractive nuisance for

neighborhood children, lure uninvited scavengers,

provide cover and breeding grounds for rodents and

insects, and generally constitute a threat to the health,

safety and welfare of neighborhood residents.”

Field v. Area Plan Commission of Grant County, supra, at

1139, fn. 6. Junked automobiles are particularly

recognized as presenting a considerable health and safety

hazard. As explained in Lachapelle v. Goffstown, (1967) 107

N.H. 485, 225 A.2d 624 (uphoiding an amortization

provision applied to a junkyard in a residential zone), they

tend to still have gasoline in their tanks, children are

attracted to them, they may fall if disturbed and they tend

to create neighborhood blight. Consequently, the state has a

reasonable and legitimate interest in zoning areas for

solely residential use and in excluding junkyards from

residential areas. Field v. Area Plan Commission of Grant

County, supra; Antrim v. Hohlt, supra.

Under many ordinances, however, proof of a prior

nonconforming use’ constitutes a defense to an action

alleging a violation of a zoning ordinance. Generally,

zoning ordinances have no retroactive effect and work no

disturbance with existing property uses. Dandy Co., Inc. v.

Civil City of South Bend, (1980) Ind.App., 401 N.E.2d 1380.

Thus, the right of a municipality to enact zoning

restrictions is subject to vested property interests, Jacobs v.

Mishawaka Board of Zoning Appeals, supra, and

consequentiy, as emphasized by the Aileses and Rouse, an

ordinance prohibiting any continuation of a pre-existing

* A prior non-conforming use is defined as a use of premises which

lawfully existed prior to the enactment of a zoning ordinance and

which is allowed to continue after the ordinance’s effective date

although it does not comply with the use restrictions applicable in the

area. Jacohs vr. Mishawaka Bd. of Zoning Appeals, snpra.

C-7

lawful use is unconstitutional as a taking of property

without due process of law and as an unreasonable exercise

of police power. Jd.

Generally, however, nonconforming uses are not favored

since they impede the attainment of the legitimate purpose

of zoning ordinances to secure the gradual or eventual

elimination of such uses, /d.; Misner v. Presdorf, (1981)

Ind.App., 421 N.E.2d 684, and zoning ordinances routinely

employ various methods to eliminate such uses, including

the prohibition of resumption of the nonconforming use

after abandonment or destruction of nonconforming

structures, and the prohibition of alterations or expansion

of nonconforming uses. Jacobs v. Mishawaka Board of

Zoning Appeals, supra. E.g., Fidelity Trust Co. v. Downing,

(1946) 224 Ind. 457, 68 N.E.2d 789 (dilapidated

refreshment stand destroyed by fire could not be

reconstructed); Chizum v. Elkhart County Plan Commission,

(1970) 147 Ind.App. 691, 263 N.E.2d 654 (erection of

lightpoles along dragstrip was an illegal extension of

nonconforming use). These methods have withstood

constitutional attack in view of the public interest. See

Misner v. Presdorf, supra (where the Court found an

ordinance prohibiting expansion of a nonconforming use

was not an unconstitutional taking); 101 C.J.S. Zoning §63

(1958).

While amortization, the method used in the instant case

to eliminate prior nonconforming uses upon the expiration

of a specific period of time, has not been specifically

challenged in this jurisdiction, it is, however, a method

commonly employed in other jurisdictions. See Annot., 22

A.L.R.3d 1134 (1968). There is a divergence of opinion

among our sister states concerning the constitutionality of

amortization provisions. Although a few states have

concluded this method is unconstitutional per se, e.g..

De Mull v. Lowell, (1962) 368 Mich. 242, 118 N.W.2d 232;

C-8

Hoffman v. Kinealy, (1965) Mo., 389 S.W.2d 745; United

Advertising Corp. v. Raritan, (1952) 11 N.J. 144, 93 A.2d

362; Sun Owl Co. «. Upper Arlington, (1977) 55 Ohio App.2d

27, 379 N.E.2d 266, the greater weight of authority

supports the use of amortization provisions if they are

reasonable, usually weighing the private loss against the

public gain in each case. See Annot., 22 A.L.R.3d 1134 §§ 3,

4 (1968 & Supp. 1981).

We find this latter approach to be the more well-reasoned

view under the circumstances before us. The absolute

prohibition of amortization may unnecessarily impede the

legitimate goal of zoning to eliminate nonconforming uses

in the public interest. As explained in Lachappelle +.

Goffstown, supra:

“We believe that the rigid approach taken by [those

cases finding amortization unconstitutional per se]

has a debilitating effect on effective zoning,

unnecessarily restricts the police power and prevents

the operation of a reasonable and flexible method of

eliminating nonconforming uses in the public interest.

It is impossible to treat this problem in the abstract or

to apply the same time limitation to all nonconforming

uses. However, this should not prevent reasonable

attempts to discourage the continuation of nonconform-

ing uses in the process of furthering an important

public need without confiscatory damage to the

landowner.”

Id. at 488-89, 225 A.2d at 627.

In theory, amortization provides a grace period in which

the user may continue the nonconforming use, amortize the

investment and make future plans. The amortization

period may well provide the user with more time than

necessary to realize the economic life of the nonconforming

use. This factor is not dispositive, however, and may have

no applicability to the open use of land, as opposed to the use

C-9

of a structure. Several elements must therefore be

considered in determining the reasonableness of a given

amortization provision as applied to particular circum-

stances. For example, the public benefit may be

determined by considering the offensiveness of the

nonconforming use in view of the surrounding neighborhood;

the private loss may be measured by the value of the

nonconforming use, the damages incurred by compliance

including the hardship imposed on the user, and the length

of time allowed for amortization. Annot., 22 A.L.R.3d 1134,

supra.

In the record before us, there is no evidence indicating

the degree, if any, of hardship or loss to the landowners

which will be occasioned by compliance with the zoning

ordinances." A similar problem was presented in the Board

of Supervisors v. Miller, (1969) Iowa, 170 N.W.2d 358,

where an amortization provision requiring discontinuance

of an automobile-wrecking yard within five years was

found reasonable and a constitutional exercise of police

power, in the absence of any evidence regarding the value

or investment involved, or the extent of hardship invoked

by compliance. See also State v. Joyner, (1974) 23 N.C.App.

27, 208 S.E.2d 233, where the court held the owner must

show the loss occasioned by compliance and upheld a three

year amortization applied to a salvage yard in the absence

of such evidence. Neither the Aileses nor Rouse present a

record of any evidence on these factors which would allow

this Court to balance the interests involved and determine

the reasonableness of the amortization provisions as

applied to their property.’ On the other hand, we are

* Indeed, the removal of the offending materials may well increase the

value and marketability of their real estate as residential property.

* It does not appear that the Aileses or Rouse ever presented the issue

directly to their zoning boards. Where a person seeks to challenge the

constitutionality of a zoning ordinance as applied to their property, the

issue must first be presented to the board of zoning appeals. E.g., Town

of Homecroft ¢ Macheth, supra: Board of Zoning Appeals of New

Albany «. Koehler, supra.

C-10 ‘

confronted with the inherently debilitating effects of

maintaining a junkyard in a residential neighborhood and

the resultant legitimate interests of the state in eliminating

nonconforming uses for the public welfare. We find the

amortization provisions at issue in the instant case are not

unconstitutional per se.

We do not hold all amortization provisions are

constitutional per se or as applied under all circumstances.

Even an amortization provision valid on its face may be

found unconstitutional as applied to a particular parcel of

real estate after weighing the pertinent factors, some of

which are enumerated above. The rule of reasonableness

must prevail, considering the public gain versus the

private loss. As in all zoning cases, each case must be

decided on its own facts. Nelson ». Board of Zoning Appeals

of Indianapolis, (1959) 240 Ind. 212, 162 N.E.2d 449; Jacobs

". Mishawaka Board of Zoning Appeals, supra.

The judgment of the trial court is affirmed.

CONOVER, J., concurs.

YOUNG, J., dissents with opinion.

YOUNG, Judge, dissenting.

I dissent.

The so-called “amortization” provision in the two

ordinances is a taking of property without due process.

Therefore, it is an unreasonable exercise of police power

and unconstitutional per se. See e.g., Hoffman v. Kincaly,

(1965) Mo., 389 S.W.2d 745; Sun Oi! Co.» City of Upper

Arlington, (1977) 55 Ohio App.2d 27, 379 N.E.2d 266. The

state and its cities and towns have a legitimate interest in

the elimination of prior nonconforming uses. The method of

elimination, however, must be reasonable. Here it is not

reasonable. Any public gain realized by the use of

amortization provisions is outweighed by the private loss. I

would reverse.

C-11

APPENDIX D

STATE OF INDIANA ) IN TEE RIPLEY CIRCUIT

) COURT

SS:

COUNTY OF RIPLEY ) GENERAL TERM, 1978

RIPLEY COUNTY AREA )

PLAN COMMISSION, )

)

Plaintiff, )

)

Vs. ) Case No. C-77-128

)

MELVIN T. Rouse, )

)

Defendant. )

INJUNCTION AND JUDGMENT

Evidence was presented in this Court on May 26, 1978.

Defendant's attorney filed a Trial Brief and Plaintiff's

attorney was given an opportunity to file one. His brief was

filed on June 21, 1978. The Court having duly considered the

evidence, arguments of counsel and briefs submitted now

finds that Defendant, Melvin T. Rouse, is operating a

junkyard on certain real estate owned by him in Ripley

County, State of Indiana. The Court further finds that said

real estate was originally zoned R-2 on June 15, 1970 and

that said zoning classification remains unchanged to the

present time. The Court now concludes that judgment

should be for Plaintiff and that Defendant should remove

his junkyard from said real estate.

IT IS THEREFORE ORDERED that Plaintiff have and

recover judgment from Defendant. Costs are assessed

against Defendant.

IT IS FURTHER ORDERED that Defendant be and he

hereby is enjoined from operating and maintaining his

junkyard on his real estate located in Franklin Township.

Ripley County, Indiana, to-wit:

D-1

Part of the Southeast Quarter of Section 15, Township

8 North, Range |2 East, containing. 90 of an acre, more

or less.

ALSO, Part of the Southeast Fourth of the Southeast

Quarter of Section 15, Town 8 North, Range 12 East,

containing 51/100 acres, more or less.

ALSO, Part of the Southwest Fourth of the Southeast

Quarter of Section 15, Town 8 North, Range 12 East,

containing 1.91 acres, more or less.

IT IS THEREFORE ORDERED that Defendant

commence the removal of junk automobiles and junk

equipment immediately. He is hereby given a period of

ninety (90) days in which to complete the removal of all of

said junk automobiles and junk equipment.

SO ORDERED this &th day of August, 1978.

/s/ Henry A. Pictor

Henry A. Pictor, Judge

Ripley Circuit Court

D-2

APPENDIX E

STATE OF INDIANA ) IN THE RIPLEY CIRCUIT

) COURT

COUNTY OF RIPLEY ) GENERAL TERM, 1980

RIPLEY COUNTY AREA

PLAN COMMISSION,

Plaintiff,

Vs. Cause No. C-77-128

)

)

)

)

)

)

)

MELVIN T. Rouse, )

)

Defendant.

ORDER

Arguments were presented by the attorneys on

September 18, 1980. The Court found that the Motion for

Relief From Judgment should be considered in view of the

fact that defendant asserted a change in the constitution

rather than simply a change in the law. The Court further

found that the Ripley County Zoning Ordinance as it

applied to defendant’s real estate in the present case is

constitutional. The Court specifically found that no

structures were involved in defendant's nonconforming use

of his real estate.

IT IS THEREFORE ORDERED AND ADJUDGED

that the Motion for Relief From Judgment be and it is

hereby overruled and denied.

SO ORDERED and dated this 18 day of September, 1980.

/s/ Hennry A. Pictor

Henry A. Pictor, Judge

Ripley Circuit Court

Copy to: Johnson & Eaton

Jack Shields

E-1

APPENDIX F

STATE OF INDIANA ) IN THE RIPLEY CIRCUIT

) COURT

)

)

COUNTY OF RIPLEY GENERAL TERM, 1981

RIPLEY COUNTY AREA

PLAN COMMISSION,

Plaintiff,

)

)

)

)

)

Vs. ) CAUSE No. C-77-128

)

MELVIN T. Rouse, )

)

)

Defendant.

ORDER ON MOTION TO CORRECT ERRORS

On August 8, 1978, this Court ORDERED an injunction.

On September 13, 1980, defendant filed a Motion for Relief

From Judgment. That motion was argued before the Court.

At the argument the Court advised the attorneys that

specific findings would be made by the Court. The Court's

Order of September 18, 1980, failed to detail any such

findings. On November 18, 1980, defendant filed a Motion to

Correct Errors. As directed by the Court both plaintiffand

defendant have filed proposed findings of fact.

The Court now concludes that the Order of September 18,

1980, should be corrected and that specific findings of fact

should now be made. The Court now finds:

1. Defendant is now and, at all times relevant to the

present suit, was the owner of the following described real

estate in Franklin Township, Ripley County, Indiana.

Part of the Southeast Quarter of Section Fifteen (15),

Township Eight (8) North, Range Twelve (12) East,

containing ninety hundreths (.90) of an acre, more or

F-1

less. ALSO, part of the Southeast Fourth of the’

Southeast Quarter of Section 15, Township 8 North,

Range 12 East. containing fifty-one hundredths (.51)

of an acre, more or less. ALSO, part of the Southwest

Fourth of the Southeast Quarter of Section 15,

Township & North, Range 12 East, containing one and

ninety-one hundredths (1.91) acres, more or less.

2. On June 15th, 1970, the Ripley County Commissioners

adopted the Unified Zoning Ordinance and master plan for

Ripley County, and that at all times thereafter said Unified

Zoning Ordinance has been in effect.

3. Pursuant to the Unified Zoning Ordinance

hereinabove referred to, the defendant's real estate in

classified as R-2.

4. Defendant's use of the real estate subject hereof asa

junk yard began prior to the effective date of the Ripley

County Zoning Ordinance of 1970.

5. Defendant's use of the real estate subject hereof as a

junk yard, existed on the effective date of the Ripley County

Zoning Ordinance of 1970.

6. Defendant’s use of the real estate subject hereof as a

junk yard, has continued uninterrupted since the effective

date of the Ripley County Zoning Ordinance of 1970.

7. Said Section 3.5 of the Ripley County Zoning

Ordinance of 1970, insofar as it attempts to terminate a

legal nonconforming, preexisting use of real estate, and

specifically the wording of said section, which reads as

follows:

“The lawful use of a building or premises, existing at

the time of passage of the ordinance, may be continued

although such use does not conform to all the

provisions of this ordinance or amendments to this

ordinance except as hereinafter provided.”...

F-2

“(g) any nonconforming open use of the land shall be

discontinued within five (5) years from the date of

passage of this ordinance.”

is constitutional in its application to the use by defendant of

his real estate.

8. No structures of buildings ever were or are now

involved in defendant's nonconforming use of his real

estate,

The Court now concludes as a matter of law that no relief

should be granted from this Court's judgment of August &,

1978.

IT IS THEREFORE SO ORDERED AND ADJUDGED.

Defendant’s Motion for Relief From Judgment is hereby

again overruled and denied.

SO ORDERED and dated this 15th day of April, 1981.

/s/ Henry A. Pictor

Henry A. Pictor, Judge

Ripley Circuit Court

Copy to: Stephen Taylor

Jack Shields