dissenting.
I dissent. The record is devoid of substantial evidence to support the board’s determination that granting the variance would be injurious to the public health, safety or general welfare.
IND.CODE 36-7-4-1009 prohibits the trial court from conducting a trial de novo upon a writ of certiorari from a board of zoning appeals determination. However, when appealing from an adverse decision at the trial court level, the board bears the burden of persuading this court that the board’s determination was supported by substantial evidence and was thus not clearly erroneous. Town of Beverly Shores v. Bagnall (1992), Ind., 590 N.E.2d 1059, 1062.
The board claims that its denial of a variance — unaccompanied by findings of fact — is predicated upon Wetherald’s failure to establish that: “the approval will not be injurious to the public health, safety, and general welfare of the community.” At the public hearings, board members expressed “concern” about traffic congestion at the site. Record, p. 48, Minutes, pp. 19-20, 23. This is so despite the Board’s admission that Wetherald complied with the local requirement of 10 vehicle “stacking positions” to keep customers ordering or receiving food on the parking lot and off the street. Minutes, p. 16. It is uncontro-verted that Wetherald thereby complied with the traffic safety standard established by the City of Columbus.
The “evidence” in support of the board’s determination as to public safety consists of testimony by Steve Rucker, City of Columbus engineer:
“Our only concern is that kind of development on such a small site. Uh, I think it’s, uh, a problem we get very cramped site plan and, and use that tends to generate large volumes of traffic, as a drive thru restaurant does. And the memo didn’t intend to say that kind of cars were going to be there every hour, uh, use some comparisons to show other kinds of uses. The drive thru restaurant does tend to generate a lot of cars.” (emphasis added)1
Minutes, p. 6.
“If we have one more conflict and the 'possibilities of cars colliding.” (emphasis added)
Minutes, p. 9.
Although there exists conjecture and speculation as to “possibilities” and “tendencies,” there is no substantial evidence of a safety hazard specifically related to the location under consideration. However, the record discloses uncontroverted evidence of the public health and safety benefit flowing from Wetherald’s acquisition and use of the site: the drive-through operation replaced a worthless, abandoned, roach and rodent-infested structure. Minutes, p. 11. Moreover, the owner of the adjacent property (a doughnut shop) testified that his traffic generation peak occurred in the early morning, in contrast to the peak traffic hours at Wetherald’s hamburger establishment. Minutes, pp. 8, 11.
I would affirm the decision of the trial court setting aside the board’s determination as illegal, arbitrary and contrary to the weight of the probative evidence.
. The memo referenced by Rucker discloses "trip generation data” from the Institute of Traffic Engineers, estimating an "average" of 78.8 trips during the peak hour for a drive-through restaurant. Minutes, p. 26.