Agenda - Planning Commission - 05/06/1997

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Page 2 --April 25, 1997 z.g. Variance-- Can zoning board revoke variances a year after granting them? Schlehuser v. City of Seymour, 674 N.E. 2d 1009 (Indiana) J996 In 1993 Schlehuser got a variance to operate an auto repair shop in a Seymour, Ind., garage. Later that year, Schlehuser requested and got another variance, which enabled him to add parking space at another property to store customers' cars, a used-parts trailer and three disabled cars awaiting repair. A year tater, the city petitioned the board of zoning appeals to revoke the variances it had granted to Schlehuser. Alleging a "change in conditions and circumstances," the city said the daily average of Schtehuser's customers parking exceeded the limit of 15 cars, and that customers were parking their cars in unauthorized areas. The city also claimed Schlehuser ignored repeated notices to comply with the terms of the variance. Responding to the city's petition, Schlehuser got a temporary order to prevent the board from taking any action. The court later rescinded the order. After the court rescinded the order, the board decided to revoke the variances, and Schlehuser asked the court to review the board's actions. The court found the board had the authority to revoke the variances, and denied Schlehuser's petition to review the board's decision. Apparently, the court did not prepare a transcript of these proceedings. Schlehuser appealed, arguing the court abused its discretion when it rescinded the restraining order, and that it was wrong to deny his request for a review of the decision. Schlehuser also claimed the board was not authorized by statute to revoke variances.' A state statute gave municipalities and counties, not public agen- cies, the power to revoke variances. An administrative agency could assume those powers only if a municipality granted them by ordinance. The city said a city code gave its board that power. The code made no specific references to the board's ability to revoke variances. DECISION: Reversed in part, and returned to the lower court. The court correctly refused to continue the temporary order. To prove an order was necessary, Schlehuser had to demonstrate that irreparable damage would result if the order were not issued. Schlehuser could not do that, since the board had not yet considered the city's petition to revoke the variances; Schlehuser couldn't claim irreparable harm if he wasn't even certain the variances would be revoked. According to an Indiana statute, a board could revoke a variance, but only if allowed by local ordinance. The city code did not directly address the revocation issue, so the power to revoke was not inherent in the board's authority to approve and deny permits. On the other hand, the board could impose reasonable conditions when approving a variance. So if a property owner failed to meet these conditions, the board could revoke a variance, because the approval depended on compliance with those conditions. But while theoretically the board could revoke a variance if conditions were not met, that did not mean the board proceeded properly in this case. The court I I I ! I '1 I I I I I I ii I I I I I I