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, Inc., (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 requirements when they have proven to be reasonable under the particular facts and circumstances of the case. Bird v. Delaware Muncie Metropolitan Plan Commission, (1981) Ind.App., 416 N.E.2d 482.
While 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 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 feel 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 expansion 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 to a 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 period were too short in 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 re*1062view is as necessary in amortization cases as it is in other areas of zoning problems.
I agree with Judge Miller's reasoning and conclusions in the instant case:
"[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.
# # i # # *
"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 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 noneon-forming 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 cireumstances. 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 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.