MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
                                                                            Mar 06 2020, 9:25 am
regarded as precedent or cited before any
court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE FLOYD
C. Gregory Fifer                                         COUNTY BOARD OF ZONING
Applegate Fifer Pulliam LLC                              APPEALS
Jeffersonville, Indiana                                  Keith D. Mull
                                                         Mull Law Office
                                                         New Albany, Indiana
                                                         ATTORNEY FOR APPELLEES
                                                         CURT RAFFERTY AND CEEK
                                                         PROPERTIES, LLC
                                                         John A. Kraft
                                                         Young, Lind, Endres & Kraft
                                                         New Albany, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stiller Properties, LLC,                                 March 6, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PL-2190
        v.                                               Appeal from the Floyd Superior
                                                         Court
Floyd County Board of Zoning                             The Honorable Marsha Owens
Appeals, Curt Rafferty, and Ceek                         Howser, Special Judge
Properties, LLC,                                         Trial Court Cause No.
Appellees-Respondents                                    22D02-1809-PL-1305




Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020                           Page 1 of 9
      Crone, Judge.


                                             Case Summary
[1]   Curt Rafferty filed an application for a development standards variance to build

      a 7500-square-foot Dollar General store in a zoning district in which retail

      establishments only up to 5000 square feet are permitted. The Floyd County

      Board of Zoning Appeals (“BZA”) held a hearing and granted Rafferty’s

      variance application over the objection of neighboring landowner Stiller

      Properties, LLC (“Stiller”). Stiller petitioned for judicial review of the BZA’s

      decision, which the trial court affirmed. On appeal, Stiller contends that the

      BZA’s decision is unsupported by substantial evidence. We disagree and

      therefore affirm.


                                 Facts and Procedural History
[2]   Ceek Properties, LLC (“Ceek”), owns a lot on Paoli Pike in Floyds Knobs that

      is located in a Neighborhood Commercial (“NC”) zoning district. One of the

      permitted uses in an NC district is a Retail Small Scale use, which “means a

      retail establishment up to 5,000 square feet primarily engaged in the selling or

      rental of goods and/or merchandise and in rendering services incidental to the

      sale of such goods.” Appellant’s App. Vol. 2 at 185. Rafferty contracted with

      Ceek to purchase the lot with the intent of building a Dollar General store that

      he would lease to the company. In July 2018, Rafferty filed an application for a

      development standards variance that would allow him to build a 7500-square-

      foot store. At the BZA hearing on his application, Rafferty explained that


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020   Page 2 of 9
      “Dollar General does not have a prototype that’s 5,000 square feet. Their

      smallest prototype is 7,500. If there was one that was 5,000 I would be happy

      to do it, but their smallest one is 7,500 and they rarely ever use it.” Id. at 135.

      The BZA granted the application over the objection of Stiller, which owns

      property across Paoli Pike from Ceek’s lot. Stiller petitioned for judicial review

      of the BZA’s decision, which the trial court affirmed. Stiller now appeals.


                                     Discussion and Decision
[3]   Stiller contends that the BZA erred in granting Rafferty’s variance application.

      “A variance is described as a dispensation granted to permit a property owner

      to use his property in a manner forbidden by the zoning ordinance. A zoning

      board has the power within its discretion to approve or deny a variance from

      the terms of a zoning ordinance.” Schlehuser v. City of Seymour, 674 N.E.2d

      1009, 1012 (Ind. Ct. App. 1996) (citation omitted). Judicial relief from a zoning

      decision may be granted only if the court determines that the petitioner has

      been prejudiced by a decision that is “(1) arbitrary, capricious, an abuse of

      discretion, or otherwise not in accordance with law; (2) contrary to

      constitutional right, power, privilege, or immunity; (3) in excess of statutory

      jurisdiction, authority, or limitations, or short of statutory right; (4) without

      observance of procedure required by law; or (5) unsupported by substantial

      evidence.” Ind. Code § 36-7-4-1614(d). “The burden of demonstrating the

      invalidity of a zoning decision is on the party to the judicial review proceeding

      asserting invalidity.” Ind. Code § 36-7-4-1614(a).



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020   Page 3 of 9
[4]   When we review a zoning board’s decision, we apply the same standard as the

      trial court. Burcham v. Metro. Bd. of Zoning App. Div. 1 of Marion Cty., 883 N.E.2d

      204, 213 (Ind. Ct. App. 2008). We may not substitute our judgment for that of

      the zoning board, and we may neither reweigh evidence nor reassess witness

      credibility. Id. To reverse the grant of a variance on the basis of insufficient

      evidence, “an appellant must show that the quantum of legitimate evidence was

      so proportionately meager as to lead to the conviction that the finding and

      decision of the board does not rest upon a rational basis.” Id. at 212-13

      (quoting Snyder v. Kosciusko Cty. Bd. of Zoning App., 774 N.E.2d 550, 552 (Ind.

      Ct. App. 2002), trans. denied (2003)).


[5]   The requirements for obtaining a development standards variance are spelled

      out in Indiana Code Section 36-7-4-918.5(a), which reads in relevant part,


               A board of zoning appeals shall approve or deny variances from
               the development standards (such as height, bulk, or area) of the
               zoning ordinance.[ 1] The board may impose reasonable
               conditions as a part of the board’s approval. A variance may be
               approved under this section only upon a determination in writing
               that:


                        (1) the approval will not be injurious to the public health,
                        safety, morals, and general welfare of the community;



      1
       Stiller argues that Rafferty should have applied for a use variance instead of a development standards
      variance because the zoning ordinance does not permit commercial retail uses of 5000 square feet or more in
      an NC district. The appellees assert that this argument is waived because Stiller failed to raise it at the BZA
      hearing. We agree. See McBride v. Bd. of Zoning App. of Evansville-Vanderburgh Area Plan Comm’n, 579 N.E.2d
      1312, 1315 (Ind. Ct. App. 1991) (“Objections or questions which have not been raised in the proceedings
      before the administrative agency will not be considered by this court on review of the agency’s order.”).

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020                       Page 4 of 9
                  (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.[ 2]


Here, the BZA’s preprinted “ballot” on Rafferty’s variance application contains

the following findings:


         1. Approval of the variance [will not] be injurious to the public
         health, safety, morals, and general welfare of the community
         because: a larger building could be constructed with multiple tenants.
         The design elements being provided fit well with the recent development
         along Paoli Pike.

         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 because: the site is currently zoned Neighborhood
         Commercial and this type of business is permitted.

         3. The strict application of the terms of the zoning ordinance
         [will] result in practical difficulties in the use of the property
         because another development could be proposed that would be larger
         and generate more adverse conditions. Thus this proposed development
         fits satisfactorily on this site.


Appellant’s App. Vol. 2 at 116 (handwritten notations in italics).




2
  The statute also permits a zoning ordinance to establish a stricter standard than the “practical difficulties”
standard, but Floyd County’s zoning ordinance does not do so.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020                          Page 5 of 9
[6]   Contrary to Stiller’s assertions, there is sufficient evidence in the record to

      support each of these findings. First, regarding the BZA’s finding that approval

      of the variance will not be injurious to the public health, safety, morals and

      general welfare of the community, the evidence indicates that the proposed

      building is actually smaller than existing buildings in the area and, as

      emphasized by the BZA, the proposed building is smaller than a multiple-use

      larger building that would already be allowed on the same site as a matter of

      right. Id. at 63, 122, 125, 132. 3 As restaurants, gas stations, groceries, and

      other commercial uses are approved for the area, the proposed retail space is

      totally “in line with the density that is already allowed on the site.” Id. at 130.

      The proposed Dollar General store “will generally be pulling traffic from the

      existing traffic that’s on Paoli Pike,” id. (emphasis added), and there is no

      evidence to suggest that approval of the variance will cause traffic to become

      injurious to the community. 4 Moreover, there is evidence in the record which

      indicates that the planned construction of a water detention basin and retaining

      wall on the property will not injure but would actually serve to improve current

      drainage and water runoff issues on Paoli Pike. Id. at 60, 113, 131. In short,




      3
       A multiple-use building on the site same could be up to 10,000 square feet. Appellant’s App. Vol. 2 at 122,
      125.
      4
          Rafferty’s project engineer, Jason Copperwaite, explained,

               Because there are other Dollar General’s [sic] in other places like Georgetown you won’t have
               people coming from Georgetown to go to this Dollar General store. [T]here are Dollar General
               Stores in New Albany you won’t have people coming from New Albany to this Dollar General
               store. This Dollar General store will be for the residen[ts] of Floyds Knobs, those people that are
               already trafficking Paoli Pike.
      Appellant’s App. Vol. 2 at 130.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020                          Page 6 of 9
      ample evidence supports the BZA’s conclusion that approval of the variance

      will not be injurious to the public health, safety, morals, and general welfare of

      the community.


[7]   As for the second finding, that the use and value of the area adjacent to the

      property will not be affected in a substantially adverse manner, it is undisputed,

      as Rafferty points out, that “retail establishments could be developed there as a

      matter of right, including those of significantly larger structure size than what

      [he] was requesting[,]” and that “[t]hose businesses would likewise have lights,

      deliveries, and people doing business.” Appellees’ Br. at 15. 5 Indeed, Rafferty

      submitted a detailed site plan showing that the proposed structure here is a

      stone and brick building that has “elevated design elements” that fit well within

      the recent development along Paoli Pike. Appellant’s App. Vol. 2 at 60, 89-90,

      132. This evidence supports a finding that the requested variance would not

      affect the use and value of the adjacent area in a substantially adverse manner.


[8]   And as for the third finding, that strict application of the terms of the zoning

      ordinance will result in practical difficulties in the use of the property, Rafferty

      emphasizes that he purchased the lot “with the sole intention of using the space




      5
          At the BZA hearing, Rafferty’s counsel observed that if
               Dollar General decided half of [the proposed 7500 square feet of retail space] was going to be
               Dollar General grocery, … and [the other half was going to be] Dollar General general
               merchandise and split it into two uses we would not even need to be here this evening because
               the building size is allowed as a matter of right under the neighborhood commercial [zoning
               rules].
      Appellant’s App. Vol. 2 at 125. In fact, as already noted, a building of up to 10,000 square feet would be
      allowed as a matter of right under such circumstances.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020                       Page 7 of 9
      for a Dollar General business” and that “[t]he smallest possible prototype for

      the Dollar General is [7500] square feet.” Appellees’ Br. at 16. He further

      notes that he “did not create the prototype and did not have authority to alter

      the square footage[,]” and that “the denial of the variance would have resulted

      in [his] 100% economic loss.” Id. at 16-17; see Reinking v. Metro. Bd. of Zoning

      App. of Marion Cty., 671 N.E.2d 137, 142 (Ind. Ct. App. 1996) (“[T]he purchase

      of property with knowledge of use restrictions does not prohibit a purchaser

      from claiming a special or unnecessary hardship, regardless of who owned the

      property at the time it was burdened.”). 6 Significantly, the evidence

      demonstrates that current approved uses for the site include far larger and more

      commercially intense uses than Rafferty’s proposal. The BZA was well within

      its discretion to determine that it would constitute an unnecessary hardship to

      permit those commercially intense uses, but not Rafferty’s proposed use.


[9]   We conclude that the foregoing facts are more than sufficient to support the

      BZA’s findings. Stiller has failed to show that the quantum of legitimate

      evidence was so proportionately meager as to lead to the conviction that the

      finding and decision of the BZA does not rest upon a rational basis. Burcham,

      883 N.E.2d at 213. Consequently, we affirm.




      6
       Stiller seizes on Rafferty’s counsel’s hypothetical about splitting the store into two uses and claims that,
      “[g]iven such admission, it was impossible for Rafferty or [Ceek] to demonstrate a practical difficulty in the
      use of the Property in the absence of the grant of the requested variance.” Appellant’s Br. at 24. But there is
      no evidence that Dollar General would ever consent to such an arrangement.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020                       Page 8 of 9
[10]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020   Page 9 of 9
