Jacobs v. Mishawaka Board of Zoning Appeals

STATON, Judge,

dissenting.

I dissent. The majority concludes that pursuant to the zoning ordinances of the City of Mishawaka, property which is subject to a particular nonconforming use may become the site of any activity which happens to bear the same general zoning classification. That proposition is based on a mistaken analysis of the Mishawaka City Council’s intentions in enacting its zoning scheme; its application at some future date could impose a ludicrous result on the city’s attempt to achieve orderly development.

The majority’s conclusion that the Jacobs are entitled to substitute a used car sales operation for the existing nonconforming use — a service station — is based on the following language contained in Article XX, Section 3 of the Mishawaka Zoning Ordinance:

“A non-conforming use may not be changed to another non-conforming use of greater restriction without the permission of the Board of Zoning Appeals regardless of whether or not structural changes are made or required to be made in the building or premises.” (Emphasis added.).

The majority’s analysis is predicated on the supposition that the phrase “greater restriction”, as it is employed in Section 3, is synonymous with “more-restricted zoning classification.” From that premise, the majority makes the following syllogism: (1) Pursuant to Section 3, it is only when a landowner seeks to change a nonconforming use to another nonconforming use of a more-restricted zoning classification that permission must be obtained; (2) Under Section 3, no limitations are placed on a landowner’s capacity to change a nonconforming use to another nonconforming use of the same or less-restricted zoning classification; and (3) therefore, since both used car businesses and service stations are categorized under the same zoning classification (“C-4”), the Jacobs were entitled to change the use of their property.

While the majority’s syllogistic rationale may perhaps appear plausible in the factual contest before us, its fallacious nature is readily explainable. Initially, the majority has erred in its supposition that the phrase “greater restriction” is synonymous with “more-restricted zoning classification.” Inasmuch as zoning classifications are generally determined upon the basis of types of activity, I reject the majority’s blithe conclusion that different zoning classifications can, as a rule, be characterized as “less-restricted” or “more-restricted” vis-a-vis one another.

*840There is no doubt that in particular instances those distinctions can be validly drawn. For example, Mishawaka’s “R-2” zoning classification encompasses all types of residential uses permitted within the city’s “R-l” classification, plus additional types of residential housing. Consequently, Mishawaka’s “R-2” classification can properly be characterized as “less-restrictive” than its “R — 1” counterpart.

In numerous instances, however, the zoning classifications outlined in the Mishawa-ka Zoning Ordinance are mutually exclusive with respect to the uses permitted under each classification.1 For example, all types of residential uses are expressly forbidden within areas zoned “1-1” (Industrial). Mishawaka Zoning Ordinance No. 1378, Art. XI, § 1 (1966). Conversely, uses permitted under the “I — 1” classification are not allowed in areas zoned for residential use. Mishawaka Zoning Ordinance No. 1378, Art. Ill et seq. (1966). Given their mutually exclusive character, it is impossible, except perhaps on an existential basis, to characterize either classification as “less-restricted” or “more-restricted” than the other; they are simply different classifications which encompass dissimilar types of uses. Accordingly, in the context of mutually exclusive zoning classifications, the rule which the majority has derived from Section 3 is not susceptible to application.

The majority’s interpretation of Section 3 is thus invalid: its application can be effectuated in only a portion of the situations which can arise under Mishawaka’s zoning scheme. This fatal infirmity stems from the majority’s failure to recognize that the phrase “greater restriction”, as it appears in Section 3, is ambiguous.

When this Court is called upon to construe an ambiguous term in an ordinance, it is advisable to consider the consequences of a particular construction. State ex. rel. Bynum v. LaPorte Superior Court No. 1 (1973), 259 Ind. 647, 650, 291 N.E.2d 355, 356. Here, any lingering doubts as to the fallacious nature of the majority’s analysis vanish upon an examination of its consequences.

For example, under Article VII, Section 1 of Mishawaka’s Zoning Ordinance, both antique shops and motor bus terminals are categorized under zoning classification “C— 1” (Commercial). Pursuant to the majority’s holding here today, a landowner who was operating an antique shop on his premises at the time when that land, as well as its surrounding area, was rezoned for residential use, could, at some later date, replace the antique shop with a motor bus terminal. For that matter, he or she could opt to establish a bowling alley, dance hall, department store, tavern, pool room, meat processing center, funeral home, or any of the myriad of activities which are designated as “C — 1” uses in Mishawaka’s zoning ordinance.

If the majority had adhered to the well-established rule that a provision of a municipal zoning ordinance should not be construed without reference to other relevant provisions of the ordinance,2 it might have realized that the Mishawaka City Council could not have intended such a paradoxical approach to its regulation of land use. At the outset of its opinion, the majority acknowledges that in order that the ultimate purposes of zoning be served, “the policy of zoning ordinances is to secure the gradual, or eventual elimination of non-conforming uses and to restrict or diminish rather than increase such uses.” (Emphasis added.) Majority Opinion, supra. Incongruously, *841the majority then subverts that policy,3 enlarging the license to operate a particular nonconforming use to include the prerogative to establish any use which happens to share the same general zoning classification. It is ironic that the majority, in the same breath in which it attributes its result to the Council, expresses its cognizance of the rule that a presumption exists that a legislative body does not expect its enactments to be applied in an illogical or absurd manner. In re Marriage of Lopp (1978), Ind., 378 N.E.2d 414, 422; City of Indianapolis v. Ingram (1978), Ind.App., 377 N.E.2d 877, 884.

I dissent.

. Among the various mutually exclusive zoning classifications present in Mishawaka Zoning Ordinance No. 1378 (1966) are the following: (1) Uses permitted in R-l and R-2 (Residential) zones are not allowed in C-2 (Commercial) zones, and vice versa; (2) Uses permitted in R-l, R-2, and R — 4 zones are forbidden in C-3 zones, and vice versa; (3) Uses permitted in 1-1 and 1-2 (Industrial) zones are forbidden in C-2 and C-4 zones, and vice versa; (4) R-l, R-2, R-3, and R-4 uses are not permitted in areas zoned 1-2, and vice versa; and (5) Uses specified in zoning classification M-l (Special) cannot be conducted in areas zoned for any other purpose, nor can any other use be conducted in an area zoned M-l.

. Carpenter v. Whitley Cty. Plan Com’n (1977), Ind.App., 367 N.E.2d 1156, 1161.

. While I agree with the majority that reliance on case precedent in the area of zoning can be dangerous, I suggest that it is equally hazardous to ignore the respect our Courts have accorded the above-discussed policy considerations. In Fidelity Trust Co. v. Downing (1946), 224 Ind. 457, 68 N.E.2d 789, our Supreme Court held that a refreshment stand which had been ravaged by fire could not be reconstructed because the building, prior to the fire, was already worn and dilapidated. Reconstruction, the Court reasoned, would extend the nonconforming use beyond its normal life. In O’Ban-ion v. State ex. rei. Shively (1969), 146 Ind.App. 223, 253 N.E.2d 739, the Court, obiter dictum, indicated that a nonconforming use for the sale of beer could not be enlarged to encompass the sale of wine and liquor. In Chizum v. Elkhart County Plan Commission (1970), 147 Ind.App. 691, 263 N.E.2d 654, the Court held that the erection of lightpoles along a drag strip which was a nonconforming use constituted an illegal expansion of that permitted use. Our decision here reflects a contrary attitude to the policy considerations surrounding the expansion or enlargement of a nonconforming use.