Agenda - Planning Commission - 03/05/2015

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Zoning Bulletin February 10, 2015 1 Volume 9 1 Issue 3 by the trial court and not challenged by the BZA on appeal, did not sup- port the BZA's findings under subsections (1) and (2) of Ind. Code § 36-7- 4-918.5." Thus the court focused its analysis on whether the denial of the requested variance would not result in practical difficulties in the use of Caddyshack's property. In its analysis of that issue, the court looked at the following factors: (1) whether "significant economic injury" would result if the ordinance was enforced; (2) whether the injury was self-created; and (3) whether there were feasible alternatives. Here, the court found the following: (1) "The evidence . . . shows that the factor of whether significant economic injury will result if the setback requirement is enforced weighs in favor of a finding that compliance with the setback requirement will result in practical difficulties in the use of the property." Though hard to predict potential future damages to the property if a seawall were not installed, the seawall was installed to protect the property from future damage. Past storm damage to the property had included exposure of pipes and the evidence showed that the distance between the edge of the pool and the 106.6 -foot setback line was relatively short. (2) "The factor of whether any injury was self-created does not weigh heavily in favor of a finding that compliance with the setback requirement will or will not result in practical difficulties in the use of the property." Although Cad- dyshack should have had knowledge of the applicable setback requirements and failed to seek and obtain a variance from the BZA to the setback require- ments prior to installing the seawall, a building permit was issued based on information as to location of the seawall and the building inspector visited the construction site without objecting to the seawall setback location. (3) "The factor of whether there were feasible alternatives which would have complied with the setback requirement which achieved the same goals of the landowner weighs in favor of a finding that compliance with the setback requirement will result in practical difficulties in the use of the property." The seawall was built to protect the home from storm damage. The evidence showed that there would have been few, if any, practical alternatives to a seawall within the 106.6 -foot setback requirement that would adequately protect the property and that could be installed within the setback without damaging the improvements—including the existing septic system and the edge of the pool. (4) Substantial removal or relocation costs, in light of the fact that the Town did not object to the location of the seawall before or during its construction, "provides an additional consideration which favors the conclusion that compliance with the setback requirement will result in practical difficulties in the use of the property." Based on those findings, the court concluded that Caddyshack demon- strated that strict application of the setback requirement would result in practical difficulties in the use of the property under Ind. Code § 36-7-4- 918.5(3). The court reversed the order of the trial court that had affirmed the denial of the variance, and the court remanded the matter. See also: Edward Rose of Indiana, LLC v. Metropolitan Bd. of Zoning Appeals, Div. II, Indianapolis -Marion County, 907 N.E.2d 598 (Ind. Ct. App. 2009). © 2015 Thomson Reuters 11