Agenda - Planning Commission - 01/07/1997

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Z.B. December 15, 1996 Page 5 At the hearing, the Reinkings produced evidence that construction of a house would leave clear traffic-site lines, would comply with one of the set- backs in the 1956 plat of the area, and would not harm any neighbors. The Department of Metropolitan Development, which had reviewed the variance application, also recommended appr. oval. Objectors said the proposed house would decrease visibility, create a traffic hazard and interfere with the traffic flow. The board denied the variance because the construction would interfere with motorist and pedestrian visibility and make accidents more likely. The board also found the variance would adversely affect the adjacent area because the proposed house "would not be of a similar setback nor a similar building and lot area as the long-time established residences in the area." The Reinkings appealed the denial in court. They said enforcing the ordi- nance against them was an unconstitutional taking without compensation. They also argued the board exceeded its authority when it denied the variance. The board said the Reinkings could not legally challenge the ordinance as a taking because the ordinance was already in force when the Reinkings bought the property. The board also said the Reinkings were not entitled to get a variance because they knew about the setback and lot-size requirements when they bought the property. Therefore, the hardship was "self-created." The court concluded the board had enough evidence to deny the variance, and affirmed the board's decision. The Reinkings appealed. DECISION: Affirmed. The Reinkings could not legally challenge the ordinance as a taking, and the board properly denied the variance. The Reinkings could not legally challenge the ordinance as a taking of prop- erty. The Reinkings bought the property after the 1989 ordinance was adopted. Any taking that may have occurred took place before they owned the property. The Reinkings could seek a variance from the 1989 ordinance even though they may have been aware of the setback and area restrictions when they bought the lot. If the Reinkings created their need for a variance, they would be barred from seeking one. However, just because they knew about the land- use restrictions in effect at the time of purchase did not mean they could not apply for a variance. Although the Reinkings were entitled to seek a variance, the board prop- erly denied their application. The board, which had expertise in the area of land use, had wide discretion. The Reinkings did not produce enough evi- dence to overturn the Iower court's decision that the board properly denied the variance. Bowman v. Metropolitan Board of Zoning Appeals of Marion County, 331 N.E. 2d 739 (1975). Bowen v. Metropolitan Board of Zoning Appeals in Marion County, 317 N.E. 2d 193 (1974).