Dissenting Opinion
Faulconer, J.— It is axiomatic that, as a general rule, the court will not reverse the decision of the Board where there is evidence to support it, nor will the court substitute its own judgment for that of the Board.
“Nevertheless, ‘if it should be made to appear that the evidence upon which the agency acted was devoid of probative value; that the quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding does not rest on a rational basis or that the result of the hearing must have been substantially influenced by improper considerations the order will be set aside.’ ” Quote from Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 118-19, 26 N. E. 2d 399, 409; Bd. of Zon. App. v. School City of Mishawaka (1957), 127 Ind. App. 683, 690, 145 N. E. 2d 302; Blue Ribbon Pie Kitchens v. Long (1952), 230 Ind. 257, 260, 103 N. E. 2d 205; Pollock v. Studebaker Corporation (1952), 230 Ind. 622, 624, 105 N. E. 2d 513.
The trial court found “[t]hat all of the evidence in this cause, . . . disclose that there was substantial evidence of *527probative value authorizing the grant of the variance . . . (Emphasis supplied.)
“[A] 11 of the statutory causes for such variance must be unequivocally present considering the evidence presented before the Board and before the trial court.” Kessler-Allisonville C. L. v. Marion County Bd. of Z. A. (1965), 137 Ind. App. 610, 209 N.E. 2d 43, 47, 6 Ind. Dec. 109, 113, (Transfer denied).
The appellees state in their brief, at page 8, that
“[T]he task before this Court is to consider the evidence merely to determine whether or not it was of sufficient probative value to support the finding and determination of the Superior Court.”
A review of the evidence most favorable to the appellees does not, in my opinion, meet the requirement that the evidence be of “substantial probative value” on each of the determinants.
The evidence introduced amounts to conclusions only of the witnesses. They are in the form of, “In my opinion the variance, et cetera.” If such evidence meets the requirements of “substantial evidence of probative value” then the only possible legitimate appeal from the Board would be in cases where there is a total lack of evidence in the record on a required finding.
I do not feel that the courts have completely relinquished their responsibilities that such an interpretation would most certainly invoke.
There is also, in my opinion, a lack of quality and quantity of evidence on the necessity of changing the use of the property involved. The evidence is unconflicting that this land was zoned in 1950' for a golf course for residents of the area and that the homes were originally sold with this fact as an inducement. That this area is now only suited for high-rise apartment buildings should, in my opinion, be supported by *528more substantial evidence than appears in the record before us in this cause.
I would reverse this cause with instructions to the trial court to deny the variance.
Note. — Reported in 224 N. E. 2d 66.