Opinion
Gary R. Landau, Arthur H. Northrup, Indianapolis, for defendants-appellants.
Rynearson s&sRumple, Paul V. Rumple, Max Rynearson, Indianapolis, for plaintiff-appellee.
Page 922
BUCHANAN, Judge.
ON PETITION FOR REHEARING OF 276 N.E.2D 220
Rehearing should be granted because our decision in this case is contrary to our decisions in Metropolitan Board of Zoning Appeals of Marion County, etc. v. Standard Life Insurance Co. of Indiana (1969) Ind.App., 251 N.E.2d 60, and Metropolitan Board of Zoning Appeals of Marion County v. Mullin (1971) Ind.App., 276 N.E.2d 579.
Appellant's attorney rightfully chides us for what appears on the face of our opinion in this case to be unadulterated inconsistency with Mullin. He quotes Emerson to the effect that "a foolish consistency is the hobgoblin of little minds" and adds there is nothing foolish in demanding reasonable consistency in our treatment of seemingly identical fact situations. While it is doubtful Mr. Emerson ever heard of the doctrine of stare decisis and was not required to resolve legal disputes, reasonable consistency is expected of us.
Comparing Mullin with this case, we find that both involved:
1. a denial of a zoning variance petition in which the only negative testimony was by a staff member of the Metropolitan Board of Zoning Appeals,
2. reversal by the trial court upon certiorari without further evidence being introduced,
3. the variance requested was from a residential classification,
4. an issue of substantial change in the master plan which would violate the character of the neighborhood.
In both cases we quote and rely on Metropolitan Board of Zoning Appeals v. Standard Life Insurance Co., supra, ... perhaps not enough.
The Standard Life case seems identical to these two cases. In it Judge Sullivan said:
"The sole issue presented to the Superior Court, and therefore to this court upon review, is whether each of five statutory prerequisites for such variance is unequivocally present." (Emphasis supplied.)
He also said in that opinion:
"In order to reverse an order of a board which, as here, denies a variance the reviewing court must find that each of the five statutory prerequisites has been established as a matter of law, giving wide construction to the total evidence and resolving all doubts in favor of the board's determination. Board of Zoning Appeals of the City of Indianapolis v. American Fletcher National Banks&sTrust Company, supra [139 Ind.App. 9, 205 N.E.2d 322]. In other words, the evidence supporting each prerequisite must be such that no reasonable man could fail to accept that prerequisite as proved." (Emphasis supplied)
The court then reversed the trial court for reversing the decision of the Board and went on to say that:
"So long as the controlling legislation continues to require establishment of five very restrictive prerequisites before a board can grant a variance, courts which review a negative determination by such board are virtually powerless to overturn such determination."
In effect, what we have done in this case is to affirm a reversal of denial of a variance where there was conflicting evidence. We cannot say "as a matter of law" that all five of the statutory prerequisites were "unequivocally present" because there was contrary evidence presented by a staff member.
The hobgoblin of inconsistency has overtaken us.