Agenda - Planning Commission - 11/05/2009

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I I ,...?.... (( :) ,j()' '-, Zoning Bulletin July 25,20091 Volume 3 I No. 14 ordinances were facially unconstitutional. The Court' of Appeals found that decision was not yet ripe for appeal by the city because the district court had not yet issued a final order (within the mean~' ing of 28 D.S.C. S 1291) on that issue. Variance-City denies landowner's requested variance to keep non-complying advertising'sign ,c) Landowner claims variance is warranted because removal of sign will result in sigllificant economic injury Citation: Edward Rose of Indiana, LLG v. Metropolitan Rd. of Zoning Appeals, Div. II, Indianapolis-Marion County, 2009 WL 1658157 (Ind. Ct. App. 2009) INDIANA (06/15/09)--":"'Edward Rose of Indiana, LLC ("Edward Rose.") owned an ~partment complex in the city. Four signs on the prem- ises of the complex advertised the complex and its contact information. One of those signs (the "Sign"), which was visible to drivers on a nearby interstate, was 16.75-feet tall and 409.75-square feet. In March 2007, Edward Rose received 'notice froIJ? the city that the Sign was in violation of the consolidated city and county zoning ordi- nance (the "Ordinance"). . Provisions of the Ordinance limited the Sign . to a height of four feet above grade and a total display area of forty feet. After receiving the notice, Edward Rose filed a petition for a variance with the city's Department of Metropolitan Development (the "Depart- rilep.t"). It asked the city to issue a variance, allowing the Sign to remain. The Department recommended that the city's Board of Zoning Appeals (the "BZA") deny the petition. The BZA agreed and denied the petition. It did so finding Edward Rose failed to establish the three statutorily re- quired elements to obtain a variance: (1) that approval of the variance . would not be injurious to the public health, safety, morals, and general welfare of the community; (2) that the use and value of the area adja- cent to the property included in the variance would not be affected in a "substantially adverse manner;" and (3) that the strict application of the terms of the zoning ordinance would "result in practical difficulties in the use of the property." (See Indiana Code S 36-7-4-918.5(a).) Edward. Rose appealed the variance denial to the trial court. . The trial court found that Edward Rose .had established the first two . statutory elements, but had failed to show the third. It concluded that Edward Rose was not entitled to a variance because it had not proven a "significant economic injury." Edward Rose appealed. @ 2009 Thomson Reuters 7 :1 59