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0 <br />Zoning Bulletin July 10, 20101Volume 4) No. 13 <br />(2) it was not "physically impossible" for TMGS to comply both with <br />the setback requirement and PSA fire safety standards. <br />See also: Porter v. Southwestern Public Service Co., 489 S.W.2d 361, <br />87 A.L.R.3d 1259 (Tex. Civ. App. Amarillo 1972), writ refused n.r.e., <br />(Apr. 25, 1973). <br />See also: Empacadora de Carnes de Fresnillo, S.A. de C.V., v. Curry, <br />476 F.3d 326 (5th Cir. 2007). <br />Case Note: In its decision, the court differentiated its first hold- <br />ing from that of another case. The other case had held that: "[W] <br />hen police and eminent domain powers are vested in a single en- <br />tity, the entity may make reasonable exceptions to its police power <br />regulations." (See City of Lubbock v. Austin, 628 S.W.2d 49 (Tex. <br />1982).) For example, a city exercising its eminent domain powers <br />could supersede its own setback requirements. The court empha- <br />sized that this did not mean that "eminent domain entities [were] <br />per se exempt from setback requirements." In fact, here it found <br />TMGS was not. <br />Variances —City finds historical use and zoning <br />is "condition peculiar" to property resulting in <br />need for variance <br />Adjacent property owner maintains "condition peculiar" <br />requirement relates only to property's physical characteristics <br />Citation: Sam's East, Inc. v. United Energy Corp., Inc., 2010 WL <br />2336221 (Ind. Ct. App. 2010) <br />INDIANA (06/11/10)—This case addressed whether the historical <br />use and zoning of a property can constitute the required "condition pe- <br />culiar" to a property from which the need for a variance must arise. <br />The Background/Facts: Sam's East, Inc. operated a Sam's Club —a <br />warehouse retail chain —in the city. It sought to construct a gas station <br />and car wash (collectively, "gas station") for use by Sam's Club mem- <br />bers. In 2005, it purchased property (the "Property") adjacent to the <br />Sam's Club parking lot. That Property was zoned C-2 and was located <br />in an overlay zone (the "Overlay Zone"). Gas stations were permitted <br />in the C-2 district. <br />Sam's filed with the City's Plan Commission its commercial site plan <br />to construct the gas station. The plan was approved. However, because <br />Sam's failed to retrieve its related land alteration permit, the permit ex- <br />pired in April 2007. Sam's had not constructed the gas station. <br />© 2010 Thomson Reuters 7 <br />93 <br />