I-465, LLC v. Metro. Bd. of Zoning Appeals Div. II of Marion Cnty.

• Citation: 36 N.E.3d 1094
• Decision Date: 18 June 2015
• Docket Number: No. 49A05–1409–PL–403.,49A05–1409–PL–403.
• Parties: I–465, LLC, Appellant, v. METROPOLITAN BOARD OF ZONING APPEALS DIVISION II OF MARION COUNTY, Indiana, Jeffrey R. Baumgarth and the Myers Y. Cooper Company, Appellees.
• Court: Court of Appeals of Indiana

36 N.E.3d 1094

I–465, LLC, Appellant

v.METROPOLITAN BOARD OF ZONING APPEALS DIVISION II OF MARION COUNTY, Indiana, Jeffrey R. Baumgarth and the Myers Y. Cooper Company, Appellees.

No. 49A05–1409–PL–403.

Court of Appeals of Indiana.

June 18, 2015.

Libby Y. Goodknight, Marc T. Quigley, Krieg DeVault LLP, Indianapolis, IN, Blake P. Holler, Krieg DeVault LLP, Carmel, IN, Attorneys for Appellant.

Brian J. Tuohy, John J. Moore, Doninger Tuohy & Bailey, Indianapolis, IN, Attorneys for Appellees, Jeffrey R. Baumgarth, and the Myers Y. Cooper Company.

Opinion

FRIEDLANDER, Judge.

[1] I–465, LLC appeals a decision by the Marion County Metropolitan Board of Zoning Appeals (the BZA) approving a request for a property-use variance by Jeffrey R. Baumgarth and Myers Y. Cooper Co. (collectively referred to as Myers Cooper). I–465 challenges the adequacy of the BZA's findings of fact and whether they support the BZA's determination that Myers Cooper established the elements necessary to justify the variance it sought.

[2] We affirm.

[3] This is the second time the present dispute has come before this court. The background facts were set out in the previous appeal as follows:

In September 2012 Myers Cooper filed a petition for a variance with the BZA for 4048 West 94th Street in Indianapolis (“the Property”). In its petition, it requested permission to establish “a domestic canine and feline boarding and day-care facility also providing grooming services with fenced outdoor exercise area for supervised daytime use, operating under the name PetSuites” on the Property. The Property is located in a C–6 zone, which does not allow kennel or dog-boarding services to be established.

At the November 13, 2012 BZA meeting, Raymond Cooper presented Myers Cooper's petition. I–465 LLC, which owns the Hilton Homewood Suites Hotel immediately to the west of the Property, appeared at the hearing to contest the variance petition. Specifically, I–465 LLC was concerned about the noise of the animals that would be staying adjacent to its hotel and believed that its hotel would be substantially and adversely affected if the BZA granted Myers Cooper's proposed variance.

The BZA approved the variance at the November meeting on the condition that animals would be permitted in the outside play area only between 7:00 a.m. and 8:00 p.m.

HRC Hotels, LLC v. Metro. Bd. of Zoning Appeals Div. II of Marion Cnty., 8 N.E.3d 203, 204–05 (Ind.Ct.App.2014) (internal footnote and citations to the record omitted).

[4] As it turned out, only I–465, not its parent company HRC Hotels, appeared or participated in the BZA public hearing. HRC Hotels did not present any evidence at any time opposing the variance. Nor did it submit a written statement to the BZA contesting the variance. Yet, the petition for judicial review of the BZA decision was filed by HRC Hotels, not I–465. Myers Cooper filed a motion to dismiss the petition for judicial review, arguing that HRC Hotels lacked standing. The trial court ultimately granted the motion to dismiss, ruling that it did not have subject matter jurisdiction over the appeal because HRC Hotels lacked standing. HRC Hotels appealed, and this court reversed. We concluded that the standing requirements of Ind.Code Ann. § 36–7–4–1603 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015) are procedural rather than jurisdictional and therefore the trial court did have subject matter jurisdiction. Further, we held that the trial court should allow I–465, a real party in interest, to be substituted as the plaintiff and proceed to the merits of the petition for judicial review.

[5] The case was remanded and the trial court conducted a review of the BZA's grant of Myers Cooper's application for a variance. At this hearing, I–465 detailed the nature of its objections to the variance, including among others, the following: 1) Having more than 200 dogs within 45 feet of the hotel next door would present a “serious noise issue” for hotel guests, Appellant's Appendix at 26; and 2) granting the variance would decrease the value of adjacent property because if a person was driving in the area and looking for a hotel “and it's next to a dog boarding facility, and there are dogs out in the yard, you're going to be much more likely ... to drive right on by and try to find someplace that's a little more peaceful and in a more neighborhood like setting.” Id. at 42.

[6] In support of its petition for a variance, Myers Cooper offered detailed information ¹ about its plans for the PetSuites facility, including: 1) the building is attractive in design and includes cupolas, a pitched roof, stone wainscoting, and shuttered windows; 2) dense landscaping would be used to screen the outside play area for dogs, which would be oriented toward the nearby interstate and away from neighborhoods and surrounding businesses; 3) the outdoor play area would be buffered from the western and northern boundaries by an eight-foot-tall acoustical CMU block wall in order to mitigate the sound of dogs barking; and 4) dogs would be permitted outdoors in limited numbers only between the hours of 7:00 a.m. and 8:00 p.m., during which time PetSuites staff members would take each dog outside for fifteen minutes in the morning and afternoon. Myers Cooper also presented evidence that the Pike Township Residents Association (the PTRA) voted unanimously to support the variance, and the PTRA concluded that the PetSuites development would bring “much-needed property tax revenue to the city of Indianapolis and Pike Township.” Id. at 123. Following the hearing, the trial court denied I–465's petition for judicial review and affirmed the BZA's zoning decision. This appeal ensued.

[7] A zoning board may, within its discretion, approve or deny a variance from the terms of the applicable zoning ordinance. Schlehuser v. City of Seymour, 674 N.E.2d 1009 (Ind.Ct.App.1996). Pursuant to I.C. § 36–7–4–918.4 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015), in order to obtain a variance a petitioner must demonstrate that each of the following elements is present:

(1) [T]he approval will not be injurious to the public health, safety, morals, and general welfare of the community;

(2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;

(3) the need for the variance arises from some condition peculiar to the property involved;

(4) the strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and

(5) the approval does not interfere substantially with the comprehensive plan adopted under the 500 series of this chapter.

When reviewing a zoning board's decision on a request for a variance, we apply the same standard as the trial court. Caddyshack Looper, LLC v. Long Beach Advisory Bd. of Zoning Appeals, 22 N.E.3d 694 (Ind.Ct.App.2014). We presume a zoning board's determination is correct and “afford great weight to the decision of the board ... by virtue of its experience in this given area.” Burcham v. Metro. Bd. of Zoning Appeals Div. I of Marion Cnty., 883 N.E.2d 204, 216 (Ind.Ct.App.2008) (quoting City of Hobart Common Council v. Behavioral Inst. of Ind., LLC, 785 N.E.2d 238, 255 (Ind.Ct.App.2003) ). We will reverse a zoning board's decision only where a clear error of law has been demonstrated. Burcham v. Metro. Bd. of Zoning Appeals Div. I of Marion Cnty., 883 N.E.2d 204.

[8] It is not within our province in reviewing such a decision to try the facts de novo or substitute our judgment for that of the zoning board. Id. We may provide relief only if we determine that the party seeking relief was prejudiced by a BZA decision that is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. Ind.Code Ann. § 4–21.5–5–14(d) (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015); see Caddyshack Looper, LLC v. Long Beach Advisory Bd. of Zoning Appeals, 22 N.E.3d 694. In making these determinations, we cannot reweigh the evidence or reassess witness credibility. Burcham v. Metro. Bd. of Zoning Appeals Div. I of Marion Cnty., 883 N.E.2d 204. Instead, we accept the facts as found by the zoning board. Id. A zoning board's determinations as to questions of law, however, are not entitled to deference and are reviewed de novo. Id. As the party challenging the BZA's decision, I–465 bears the burden of demonstrating the decision was invalid. I.C. § 4–21.5–5–14(a) ; I.C. § 36–7–4–1614(a) (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015).

[9] At the hearing before the trial court, I–465 conceded that the first element, i.e., that approval of the variance will not be injurious to the public health, safety, morals, and general welfare of the community, had been adequately established.

[10] The second element Myers Cooper was required to establish was that the use and value of the adjacent area will not be affected in a substantially adverse manner. I–465 claimed that the value and use of its adjoining property would be adversely affected because of the noise that barking dogs would generate, and generally that the sight of dogs next door to its hotel would cause potential hotel patrons to drive elsewhere and seek accommodations not so-situated. The BZA found that Myers Cooper had addressed these concerns, and thus established the second element, by...