Agenda - Planning Commission - 02/02/2006

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December 24, 2005 -- Page 7 The lower court determined that, because the garage was equipped with sleep- lng rooms, it was a "permitted accessory use" under the 1980 ordinance, and no variance was required. The board appealed, arguing that the lower court misread the 1980 ordinance and erroneously concluded that a variance was unnecessary. DECISION: Affirmed. Although the lower court misread the ordinance, Palmer's garage was a permitted accessory use when it was built in 1974. The lower court determined that a variance was not required because when the garage was converted into a guesthouse in 1982, it was permitted accessory use under the 1980 ordinance. The lower court interpreted the 1980 ordinance to define permitted accessory uses as including a private garage and living quarters. Since the guesthouse fell within the permitted accessory use of living quarters, no variance was required. However, the lower court misstated the language in the ordinance. The 1980 ordinance stated that permitted accessory uses included a "quarter for persons employed on the premises" and the "keeping of boarders or roomers, but not to exceed 2 persons," Here, there was no evidence that Palmer housed employees; her variance application stated that she used the garage to house family and guests. In addition, the garage was not used to keep two or fewer roomers or boarders because the guesthouse contained three guestrooms. Therefore, the lower court erred in concluding that the guesthouse was a permitted accessory use as defined by the statute. A/though the garage was not a permitted accessory use under the 1980 ordinance, the court still concluded that no variance was required. When the garage was built in 1974, it met the del'tuition of a permitted accessory use under the 1971 ordinance, which deemed a "private garage" as a "garage which is erected as an accessory building." When the garage was originally built, the county permitted the installation of a septic system to service the garage. Therefore, the county acquiesced in the use of the garage to provide sleep- ing quarters. When Palmer purchased the property in 1982, the garage, with its sleeping facilitates, was a permitted use. Thus, Palmer was not required to obtain a variance to continue the use of the garage as a guesthouse. see also: Kismet Investments Inc. v. County of Benton, 617 iV. W2d 85 (2000). see also: Frank's N*,rsery Sales Inc. v. City of RosevilIe, 295 N. W. 2d 604 (1980). Nonconforming Use-- Developer fails to request permit Claims ordinance does not apply Citation: Metro Development Commissioner of Marion County v. Pinnacle Media, LLC, Supreme Court of Indiana, No. 49S05-051I-CV-510 (2005) INDIANA (1 I/3/05) -- Pinnacle Media, LLC erected and leased advertising billboards. The city of Indianapolis told Pinnacle in writing that the city's bill- © 2005 Qmnlan Publishing Group. Any reproduction is prohibited, For more ~nformation please call (617} 542-0048. 137