Daily Development for
Friday, February 27, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ZONING AND PLANNING; PRE-EXISTING NONCONFORMING USE; ALTERATION: Alteration of apartment building to increase number of apartments did not extinguish building's status as a legally established non-conforming use because while the creation of additional apartments intensified the non-conforming use, it did not affect the character of use.

Ragucci v. Metropolitan Development Commission of Marion County, 685 N.E. 2d 104 (Ind.App. 1997).

The Hatherleigh is a multi-family residential building which was built prior to 1918 and originally contained four, and possibly five, two bedroom apartments. The first zoning ordinance for the city of Indianapolis was adopted in 1922. The area where The Hatherleigh is located became zoned for single family and two family dwellings and use of The Hatherleigh as a multi-unit apartment building became a legally established non-conforming use of the property. Between the years of 1969 and 1974 previous owners subdivided three of the apartments so that in 1974 there were a total of eight units in the building. On October 11, 1994, approximately twenty years later, the Metropolitan Development Commission ("MDC") brought an action against Plaintiff, the current owner of The Hatherleigh for operating a multi-unit apartment building in an area zoned for one and two family residences. The trial court granted summary judgment for the MDC, enjoined Plaintiff from using The Hatherleigh as a dwelling for more than four families, and ordered him to restore the building to a four family dwelling. The injunction was stayed pending this appeal.

In this case of first impression, the Court of Appeals of Indiana held that the alteration of The Hatherleigh to create additional apartments was most appropriately characterized as "an intensification of the non-conforming use which does not have the affect of extinguishing it." The Court stated that existing non-conforming uses are typically exempted from use restrictions because the right of a municipality to enact zoning restrictions is subject to the vested property interests of property owners. An ordinance prohibiting any continuation of an existing lawful use in a zoned area is unconstitutional as a taking of property without due process of law, and as an unreasonable exercise of police power. Once a legal nonconforming use has been established the burden of proving the termination of that use rests on the opposing party, in this case the MDC.

The Court cited City of Beech Grove v. Schmith, 329 N.E.2d 605 (Ind.App. 1975), which established four factors to be considered in determining whether a change in a non-conforming use is permissible. These factors include 1) the time, space, and volume of the change; 2) its possible affect on the owners or occupants of neighboring the properties, or on the public; 3) whether the alteration is in conformity with a police, building, or other regulation; and 4) whether the nonconformity is in the character of the structure apart from the use, or in the character of the use apart from the structure. The Court determined only the fourth factor was relevant and found that The Hatherleigh had always been a "unified structured devoted to the housing of unrelated persons" and the changes made to the building changed the character of the structure apart from the use but did not affect the character of the use apart from the structure. A dissenting judge maintained that issue of impact on neighborhood and community concerns were sufficiently unresolved and signficant as to lead to the conclusion that summary judgment was inappropriate.

Comment 1: The case appears to be consistent generally with current law. The court cites Eunice A. Eichelbarger, Annotation, "Change in Volume, Intensity, or Means of Performing Nonconforming Use as Violation of Zoning Ordinance," 61 A.L.R.4th 806 S 40 (1988) (reviewing decisions which find an increase in number of tenants to be a permissible intensification of nonconforming use). But, as the dissent points out, that annotation stresses that courts do look to the impact of any intensification of use in order to determine whether the "pre-existing" use has been continued in the new activity.

Comment 2: "Intensification of impact," in any event, cannot be the sole determinant. The notion of pre-existing use rights is that there is a right to continue that activity commenced prior to the zoning was enacted, and the normal working out of such use might indeed lead to some intensification. The court properly noted that other factors dealing with the actual physical relationship between pre and post intensification characteristics of the use was relevant.

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