Agenda - Planning Commission - 03/05/2015

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February 10, 2015 1 Volume 9 1 Issue 3 Zoning Bulletin that: "it was injurious to the morals and general welfare of the citizens of the Town to allow a contractor to build a structure that it should have known violated the Ordinance, that the contractor should have known a building permit signed by the Town's Clerk -Treasurer was improperly is- sued, and that the contractor acted at its peril in relying on the permit." The BZA further found that the use and value of the area adjacent to the property would be affected in a substantially adverse manner. The BZA also found that the strict application of the Ordinance would not result in practical difficulties in the use of Caddyshack's property because it found the record was "devoid of any evidence whatsoever showing that a seawall could not be built within the 106.6 ft. setback as required by [the Ordinance]." Caddyshack appealed to court. Disagreeing with the BZA, the court found that approval of Caddyshack's requested variance would not be injurious to the public. The court observed that the reasoning of the BZA was based on whether Caddyshack obtained an invalid building permit and had knowledge of the setback requirement, and the court found that this was not a proper evaluation of whether granting a variance would be injurious to the public. Moreover, the court found that Caddyshack and its contractor should not have known that the building permit was invalid. The court also found no evidence that granting of the variance and construction of the seawall would affect the view or property values of sur- rounding properties. However, the court did find that there was insufficient evidence of economic injury that would result from denial of the variance request, and that there was no evidence that an existing seawall could not be built within the 106.6 foot setback. Thus, the court concluded that the BZA was not arbitrary or capricious when it denied Caddyshack's vari- ance request, finding that strict application of the Ordinance would not result in practical difficulties in the use of the property for which the vari- ance was sought. Caddyshack appealed. DECISION: Judgment of superior court reversed, and matter remanded. The Court of Appeals of Indiana disagreed with the BZA and superior court findings. It concluded that strict application of the setback require- ment would result in practical difficulties of the property, and that therefore Caddyshack's variance request should be granted. In so holding, the court explained that under Indiana statutory law, Ind. Code § 36-7-4-918.5(a), a board of zoning appeals may approve a vari- ance if: (1) the approval will not be injurious to the public health, safety, morals, and general welfare of the community; (2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and (3) the strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property. Here, the court found that "[t]he evidence before the BZA, as determined 10 © 2015 Thomson Reuters