Agenda - Planning Commission - 09/16/2010 - Special Meeting

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July 10, 2010) Volume 4 [ No. 13 Zoning Bulletin In January 2008, the City Common Council adopted an ordinance that excluded gas stations from uses in the C-2 district inside the Over- lay Zone. Seeking once again to build the gas station, in July 2008, Sam's filed an application for a use variance with the City's Board of Zoning Ap- peals ("BZA"). The BZA ultimately approved the variance, finding, in relevant part that: the need for the variance arose "from some condition peculiar to the property involved, because the [P]roperty was purchased, was sub- ject of a commercial site development plan petition, and was permitted for a gasoline service station, prior to the enactment of regulations pro- hibiting that use." United Energy Corporation, Inc. d/b/a Greenwood Sunoco ("Suno- co"), which in 2007 had constructed a gas station on property adja- cent to Sam's Property, challenged this variance grant. The Superior Court reversed the BZA's decision to issue the variance to Sam's. Sam's appealed. The Court's Decision: Judgment of Superior Court affirmed. The Court of Appeals of Indiana determined that the BZA improp- erly granted the variance to Sam's because the need for the variance did not arise from a "condition peculiar to the property," as required by state law. The court explained that, under Indiana statutory law (Indiana Code 5 36-7-4-918.4), the BZA could grant Sam's a variance only if it found, among other factors, that "the need for the variance [arose] from some condition peculiar to the property involved." The BZA had found the variance had arisen from a "condition pe- culiar to the property" —the fact that the Property was purchased and permitted for a gas station before the ordinance was amended to ex- clude gas station uses in the Overlay Zone. Sam's had also argued that its need for the variance arose from the following conditions peculiar to the Property: its gas station had to be Located in a close proximity to the Sam's Club because of the shared customer s and similar hours; its long-term use of the Sam's Club property; and the historical zoning proceedings that Sam's had pursued for constructing a gas station on the Property. Sunoco had maintained that such a "condition peculiar to the prop- erty" had to be a physical characteristic of the site, not the historical use or zoning of the site. The court agreed with Sunoco that the "condition peculiar" require- ment had to relate to the features property, not the history of the prop- erty. The court noted that while there was no "clear-cut definition of the condition peculiar requirement," the court said it "believe[d] that the peculiarity must at least relate to the specific features of the prop- 8 © 2010 Thomson Reuters 94