The June 18, 2015, Indiana Court of Appeals decision entitled I-465, LLC v. Metropolitan Board of Zoning Appeals (pdf) concerned a request for a variance granted by the Metropolitan Board of Zoning Appeals (BZA) serving Marion County. A variance is, generally speaking, relief from a zoning ordinance that permits a landowner to use the land in a manner not normally permitted by the zoning ordinance.
In this case, a business wanted to establish a pet boarding and day care service that would have an outdoor day care center. The adjacent property owner, a Hilton Homewood Suites hotel (owned by I-465, LLC), objected because, it reasoned, having a bunch of dogs next door would not be attractive to people looking for a good night’s sleep. The BZA granted the variance with the condition that the outside play was not permitted between 8 p.m. and 7 a.m. The hotel took it up with the trial court which affirmed the BZA’s decision.
The Court of Appeals said that the trial court and BZA got it right. Pursuant to IC 36-7-4-918.4, Zoning Boards are entrusted with the authority to grant variances if the following elements are 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.
The court of appeals and the trial court review the BZA’s decision with a deferential standard of review — reasoning that the BZA has experience that the courts do not. The hotel’s contention to the contrary, the BZA found that the proposed pet use would not have an adverse effect on the hotel’s property — it had plans to mitigate the noise, the pet business had a good reputation, and the planned use would spur economic activity. The courts were not prepared to substitute their judgment on this issue for that of the BZA.
The most hotly contested issue seems to be whether there had been enough evidence of “peculiarity” to justify the grant of a variance. The Court of Appeals decided that the “peculiarity” element was satisfied as described by findings of the BZA and the trial court:
[BZA]: The current C-6, thoroughfare commercial district, does not provide for a variety of specific service uses which are appropriate for interstate adjacent sites and which are permitted in preceding commercial zones (C-4 & C-5). The proposed use relies on visibility and accessibility offered by interstate adjacent sites. Proposed use is appropriate for an interstate adjacent site and the thoroughfare commercial district as communities seek to buffer neighborhood districts from the intensity of interstate activity.
. . .
[Trial court]: As depicted in the Indy GIFs Map included in the BZA staff report and the amended site plan, the Site is a dead-end site with limited access. There is no direct access from I–465 or Michigan Road to the Site. The Site is relatively small and is an unusual “flag-like” configuration. It is much narrower than the two adjacent hotel parcels and accommodates the limited parking. The Site’s small size and unusual shape limit the development that could occur on the Site. The Site’s restrictive zoning classification, location, size and configuration are conditions that support the BZA’s finding that the need for the variance arises from conditions peculiar to the Site.
As a dead-end site forming a buffer between Interstate and residential properties and given its unique shape, the site “is ideal for
travelers who wish to board their pets when leaving for a trip, thus making it uniquely appropriate for the proposed use.”
The Court of Appeals panel voted 3-0 to affirm the trial court.