Droege v. St. Joseph County Plan Commission , 132 Ind. App. 71 ( 1961 )

Myers, J.

This is an appeal from a decision of the St. Joseph Circuit Court dismissing a petition for writ of certiorari filed by appellants to review an action taken by the St. Joseph County Plan Commission wherein it recommended an amendment to the genera,! zoning ordinance of St. Joseph County.

Appellants, as petitioners, alleged that they were owners of real property located in St. Joseph County, which was adjacent to and in the immediate vicinity of certain real estate owned by St. Joseph County 4-H Fair, Inc.; that property in this vicinity had been zoned for A-l Agricultural and R-l Residential use; that St. Joseph County 4-H Fair, Inc., had attempted to obtain a variance of the use of its land so as to permit the construction, operation, and maintenance of certain commercial activities thereon, but had failed in so doing; that thereafter the St. Joseph County Plan Commission initiated a proposed amendment to the general zoning ordinance which would permit commercial use of 4-H Fair, Inc., real estate; that this amendment was adopted by the Plan Commission on March 10, 1958, after a public hearing, and was submitted to the Board of County Commissioners, which approved and adopted it into an ordinance on March 17, 1958. Petitioners aver that the changes attempted by the action on the part of the Plan Commission were discriminatory, arbitrary, and capricious, and they asked that the court declare the amendment void.

The court issued an order, addressed to the Plan Commission and the Board of County Commissioners, to show cause why a writ of certiorari should not issue. Appellees, as respondents, filed a return to the writ wherein they challenged the court’s jurisdiction to issue such a writ. After hearing arguments of counsel, the court found in favor of appellees, discharged the citation and rule to show cause, and dismissed the petition. Appellants claim this ruling of the trial court as error.

The court’s findings are as follows:

“1. In favor of the respondents on their return to said rule and against the petitioners herein;

“2. That the action of the St. Joseph County Plan Commission as alleged in said petition constitutes a legislative hearing and determination as distinguished from a judicial hearing and determination and that such legislative hearing and determination by said Plan Commission does not constitute a ‘decision’ within the meaning of that word as used in Burns’ Indiana Statutes Annotated, Section 53-755;

“3. That this court is without judicial power to review such legislative hearing and determining by said Plan Commission;

“4. That the action of Respondent, Board of Commissioners of St. Joseph County, as alleged in said petition is legislative in character and this court does not have judicial power to review such action.”

This is an attempt by appellants to have the Circuit Court of St. Joseph County review the “decision” of the County Plan Commision which adopted the amendment to the general zoning ordinance, pursuant to §53-755, Burns’ Ind. Stat., 1951 Replacement. This section is a part of a 1947 act of the Indiana General Assembly (Acts 1947, ch. 174, §55, p. 571) concerning planning and zoning of rural and urban areas. It particularly states that a “decision” of a City or County Plan Commission may be reviewed by certiorari procedure to be filed in the circuit court of the county where the disputed land is located.

This court recently rendered an opinion in a case involving an amendment to the general zoning ordinances of Marion County wherein the facts were very similar to those in the case at bar. In McGraw et al. v. Marion County Plan Commission et al. (1961), 131 Ind. App. 686, 174 N. E. 2d 757, we held that the actions taken by a County Plan Commission in connection with planning and zoning, pursuant to the act of 1947, supra, are advisory only, and are not “decisions” subject to review by circuit courts within the meaning of §53-755, Burns’ Ind. Stat., 1951 Replacement, supra. We ordered the Circuit Court of Marion County to sustain a motion to dismiss the petition for lack of jurisdiction.

In view of the decision in McGraw et al. v. Marion County Plan Commission et al., supra, the St. Joseph Circuit Court committed no error in dismissing the case.

Judgment affirmed.

Ryan, P. J., and Ax, Bierly, Cooper and Kelley, JJ., concur.

Pfaff, C. J., and Gonas, J., concur with separate opinions.