Agenda - Planning Commission - 11/05/2009

Home

I . I i i ! i I ! i , I 60 July 25,2009\ Volume 3\ No. 14 DECISION: Affumed. Zoning Bulletin The .Court of Appeals of Indiana upheld the denial of the variance, finding Edward Rose had failed to show that strict application of the Or- d.lltance would result in "practical difficulties" in the use of its property. In determining whether compliance with the. Ordinance would result in practical difficulties for Edward Rose, the coUrt looked at whether: (1) "significant economic injury" wocld result if the Ordinance was en- forced; (2) the injury was self-created; .and (3) whether there were fea- sible alternatives. The court found none of those factors were met. Edward Rose had argued that removal of the Sign would req1iire a 34%-or $16,000-annual increase in its advertising budget in orderto recover leases that would have been generated by the Sign. However, the court found that Edward Rose had failed to show how many leases were attributable to each of the four on-premises signs. It concluded that re- moval of the Sign would result in Edward Rose having to increase its annual advertisement budget in an amount less than $16,000 to recover leases that would have been generated by the Sign. Since a more precise amount of the economic injury could not be established, the co1i1:tcon- cluded that Edward Rose failed to establish that it would suffer signifi- cant economic injury. The court also fpund that Edward Rose's injury was self-created be- cause Edward Rose: (1) was aware of the Ordinance when it purchased the property; (2) petitioned to have the property rezoned; (3) used the Sign for over fifteen years knowing it was in violation of the Ordinance; and (4) never attempted to obtain a variance prior to the instant petition. Furthe~, th~ coUrt noted that a billboard on the. nearby interstate couid be a "feasible alternative" to the Sign. A billboard would still achieve the objective of providing information regarding the apartment community to traffic passing by the property on the interstate, while still meeting the requirements of the Ordinance. The court thus concluded that the variance denial was proper because strict compliance ofthe Ordmance against Edward Rose would not re- sult in "practical difficulties" 'for Edward Rose in the use of its property. See also: Metro Bd. of Zoning Appeals v. McDonald's Corp., 481 N.E.2d 141 (Ind. Ct. App. 1985). Case Not~: The court noted that the factors it considered in deter- mining whether the Ordinance would result in practical difficulties . were not exclusive. However, it limited its analysis of the issue to those factors because Edward Rose and the BZA had limited the-ir 'arguments to those factors. 8 @ 2009 Thomson Reuters () /) (, ./ ; (._)