# Petition — Ripley County Area Plan Commission v. Rouse

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1100

## Text

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

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DEE cele bokes ccecdeuesessaeanchereye « B-1

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0728%3A1. Public record. Not legal advice.