S & S ENTERPRISES v. MARION COUNTY BD.

• Decision Date: 15 May 2003
• Docket Number: No. 49A04-0207-CV-350.,49A04-0207-CV-350.
• Citation: 788 N.E.2d 485
• Parties: S & S ENTERPRISES, INC., Appellant-Petitioner, v. MARION COUNTY BOARD OF ZONING APPEALS, Board No. 2, Appellee-Respondent.
• Court: Indiana Appellate Court

788 N.E.2d 485

S & S ENTERPRISES, INC., Appellant-Petitioner, v. MARION COUNTY BOARD OF ZONING APPEALS, Board No. 2, Appellee-Respondent.

No. 49A04-0207-CV-350.

Court of Appeals of Indiana.

May 15, 2003.

C. Duane O'Neal, Christopher R. Taylor, Lewis & Kappes, Indianapolis, IN, Attorneys for Appellant.

Stephen Neff, Indianapolis, IN, Attorney for Appellee.

SHARPNACK, Judge.

S & S Enterprises, Inc. ("S & S") appeals the trial court's judgment in favor of the Marion County Board of Zoning Appeals, Board No. 2 ("BZA"). S & S raises one issue, which we restate as whether the trial court erred by failing to reverse the BZA's denial of the petition for an extension of a special exception filed by S & S. We affirm.

The relevant facts follow. On October 20, 1987, an Air Force jet crashed into the Ramada Inn at 5455 West Bradbury Avenue in Indianapolis. As a result of the crash, the hotel was demolished. The property is zoned I-3-S, medium industrial suburban. In 1989, the property owner, S & S, filed a petition for a special exception to permit a commercial pay parking area to service the Indianapolis International Airport. At a hearing on the petition, four remonstrators were present. According to minutes of the hearing, a representative of the Park Fletcher Industrial Park, which adjoins S & S's property, objected that the proposed use would violate land use covenants and expressed concerns regarding additional traffic into the area. An appraiser testified that the parking lot would not benefit the industrial park and could adversely affect the property values in the adjacent area and create an eyesore in the area. However, staff of the Department of Metropolitan Development recommended approval of the petition. The BZA approved the special exception subject to the following conditions:

1. All use shall comply with the permitted uses of the Industrial District Zoning Ordinance or that use specifically requested and [described] in this petition.

2. All development shall comply with Industrial Districts Zoning Ordinance standards specifically modified by this variance.

3. A landscape plan shall be submitted for Administrator's approval prior to an [Improvement] Location permit being issued. All approved landscaping shall be completed prior to May 31, 1990 and shall be maintained at all times thereafter.

4. All development standards of the Commercial Parking Facilities Code shall be met.

5. All lighting shall only be directed onto the site.

6. All parking spaces shall be a minimum of nine feet by twenty feet.

7. All development shall be as per the amended site-plans filed dated January 26, 1990.

8. There shall be no storage of inoperable vehicles on the site.

9. The grant of this petition shall be limited to a temporary period of ten years, expiring February 6, 2000.

10. Unless an Improvement Location Permit is obtained within one year or prior to construction, whichever occurs first, this variance is void.

Appellant's Appendix at 36-37. Consequently, the special exception was granted for a ten-year period to expire on February 6, 2000.

On October 12, 1999, S & S requested that the BZA extend the special exception to February 1, 2005, pursuant to Section 2.12 of the Industrial Zoning Ordinance of Marion County ("Ordinance"). Section 2.12 provides that:

A Special Exception shall be granted following public hearing of the petition and upon the Board's determination that:

a. The grant will not be injurious to the public health, safety, convenience or general welfare.

b. The grant will not injure or adversely affect the adjacent area or property values therein.

c. The grant will be in harmony with the character of the district and land uses authorized therein.

Id. at 47.

Duke-Weeks Realty Corporation ("Duke-Weeks"), owner of Park Fletcher, was a remonstrator and sent a letter to the Department of Metropolitan Development detailing its concerns. Duke-Weeks noted that it had "been at odds with the tenant." Id. at 30. The difficulties stemmed from property upkeep problems, including lawn maintenance, clean up of graffiti, and the use of "Porta-Potty" facilities rather than permanent employee restroom facilities. Duke-Weeks wrote that its "opposition to extending the current use mainly stems from the false promises and failure to meet various commitments that would improve the quality of the current use. At this point we have no hope that the tenant will ever adequately comply with commitments and general property upkeep that we would expect in this area." Id.

S & S responded to the concerns by proposing a commitment agreement and an escrow agreement. Under the commitment, S & S agreed that it would not seek further extensions of the special exception, would remove temporary "Porta-Potty" facilities from the site and construct permanent restroom facilities, would install professional barriers and signs and remove existing barriers and spray painted signs, would maintain the lawn care and landscaping professionally, and would maintain striping of the parking area in conformance with applicable development standards. Id. at 24. Under the escrow agreement, the tenant and S & S agreed to establish an escrow account to perform the work detailed in the proposed commitment. Despite the offer of a commitment agreement and an escrow agreement, Duke-Weeks continued to oppose the petition.

A public hearing was held on December 21, 1999. Minutes of the hearing indicate that Duke-Weeks noted that it "has had difficulty with the petitioner's ability to adhere to Park Fletcher's covenants and restrictions, [compliance] with the Sign Regulation and general maintenance of the property." Appellant's Appendix at 19. Duke-Weeks indicated that its maintenance workers had mowed portions of the property. When questioned whether the property was currently well maintained, Duke-Weeks indicated that the parking lot was covered with weeds and maintenance problems had persisted in the four to six months before the hearing.

Jeff Bellamy, Senior Planner for the Department of Metropolitan Development, stated that in 1995, the property received multiple zoning citations due to signs that did not comply with the regulations. As a result, a Stop Work Order was issued and "the owner of the site was issued civil zoning citations for the violations." Id. at 19. Additionally, Bellamy noted that "the current use [was] inconsistent with the light industrial recommendation of the Comprehensive Plan." Further, the Staff Report from the Department of Metropolitan Development noted that "[c]ontinued use of the site for commercial parking could negatively impact the long-term industrial viability of this industrial park, particularly since the site sits at the primary entrance of Park Fletcher." Appellee's Appendix at 2. Consequently, the staff recommended that the petition be denied.

A representative of S & S stated that S & S had brought legal action against its tenant to adhere to the lease agreement and proposed that "property maintenance duties would be taken out of the tenant's hands by having a long-term contract to maintain the property...." Appellant's Appendix at 19. S & S also stated that it would not make further requests for surface parking on the property.

The BZA found that:

1. The grant of the modification of conditions of 89-SE1-12 to permit the continuation of the current use as a long-term parking lot until February 1, 2005 will be injurious to the public health, safety, convenience, or general welfare of the community because the petitioner failed to adequately address remonstrator concerns regarding possible negative effects on adjacent industrial property; specifically long-term maintenance, right-of-way improvements, and permanent employee facilities. 2. The grant of the modification of conditions of 89-SE1-12 to permit the continuation of the current use as a long-term surface parking lot until February 1, 2005 will injure or adversely affect the adjacent area or property values therein because the petitioner failed to address remonstrator and staff concerns regarding the negative impacts of establishing a non-compatible use at this site which has been operated in violation of the conditions of the temporary special exception 89-SE1-12. Continued use of this site as a commercial parking lot could effect the future development of the subject site for an appropriate use, or the long-term viability of the adjacent industrial park, given the location of the subject site at the entrance of the industrial park.

3. The grant of the modification of conditions of 89-SE1-12 to permit the continuation of the current use as a long-term surface parking lot until February 1, 2005, will not be in harmony with the character of the district and land use authorized therein because the property is recommended for light industrial development by the Comprehensive Plan, the property is zoned industrially, and it is located within a large industrial park.

It is therefore the decision of this body that this variance petition is denied.

Id. at 17.

S & S filed a Petition for Writ of Certiorari and Stay of Enforcement Proceedings with the trial court. S & S alleged that the BZA's denial of its petition for an extension of the special exception was arbitrary, capricious, and an abuse of discretion because: (1) the decision was "unsupported by substantial probative and relative evidence upon the record"; (2) the use was established, the improvements exist, and "S & S provided a mechanism to address the land maintenance issues of remonstrators"; and (3) the use for which S & S sought "to continue on the property is a use established and operating in the immediate vicinity of the real estate." Id. at 11. On June 28, 2002, the trial court denied the petition.

The issue is whether the trial court erred by failing to reverse the BZA's denial of the petition for an extension of a special exception filed by S & S. When reviewing a decision...