                                                                   Jun 18 2015, 5:42 am




ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEES JEFFREY
Libby Y. Goodknight                                   R. BAUMGARTH AND THE MYERS Y.
Marc T. Quigley                                       COOPER COMPANY
Krieg DeVault LLP                                     Brian J. Tuohy
Indianapolis, Indiana                                 John J. Moore
                                                      Doninger Tuohy & Bailey
Blake P. Holler                                       Indianapolis, Indiana
Krieg DeVault LLP
Carmel, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

I-465, LLC,                                                June 18, 2015

Appellant,                                                 Court of Appeals Case No.
                                                           49A05-1409-PL-403
        v.                                                 Appeal from the Marion Superior
                                                           Court No. 7

Metropolitan Board of Zoning                               The Honorable Michael D. Keele,
Appeals Division II of Marion                              Judge
County, Indiana, Jeffrey R.
                                                           Cause No. 49D07-1212-PL-047644
Baumgarth and The Myers Y.
Cooper Company,
Appellee




Friedlander, Judge.




Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015                   Page 1 of 15
[1]   I–465, LLC appeals a decision by the Marion County Metropolitan Board of

      Zoning Appeals (the BZA) approving a request for a property-use variance by

      Jeffrey R. Baumgarth and Myers Y. Cooper Co. (collectively referred to as

      Myers Cooper). I–465 challenges the adequacy of the BZA’s findings of fact

      and whether they support the BZA’s determination that Myers Cooper

      established the elements necessary to justify the variance it sought.

[2]   We affirm.

[3]   This is the second time the present dispute has come before this court. The

      background facts were set out in the previous appeal as follows:

              In September 2012 Myers Cooper filed a petition for a variance
              with the BZA for 4048 West 94th Street in Indianapolis (“the
              Property”). In its petition, it requested permission to establish “a
              domestic canine and feline boarding and day-care facility also
              providing grooming services with fenced outdoor exercise area
              for supervised daytime use, operating under the name PetSuites”
              on the Property. The Property is located in a C–6 zone, which
              does not allow kennel or dog-boarding services to be established.
              At the November 13, 2012 BZA meeting, Raymond Cooper
              presented Myers Cooper’s petition. I–465 LLC, which owns the
              Hilton Homewood Suites Hotel immediately to the west of the
              Property, appeared at the hearing to contest the variance petition.
              Specifically, I–465 LLC was concerned about the noise of the
              animals that would be staying adjacent to its hotel and believed
              that its hotel would be substantially and adversely affected if the
              BZA granted Myers Cooper’s proposed variance.
              The BZA approved the variance at the November meeting on the
              condition that animals would be permitted in the outside play
              area only between 7:00 a.m. and 8:00 p.m.


      Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015    Page 2 of 15
      HRC Hotels, LLC v. Metro. Bd. of Zoning Appeals Div. II of Marion Cnty., 8 N.E.3d

      203, 204-05 (Ind. Ct. App. 2014) (internal footnote and citations to the record

      omitted).

[4]   As it turned out, only I–465, not its parent company HRC Hotels, appeared or

      participated in the BZA public hearing. HRC Hotels did not present any

      evidence at any time opposing the variance. Nor did it submit a written

      statement to the BZA contesting the variance. Yet, the petition for judicial

      review of the BZA decision was filed by HRC Hotels, not I–465. Myers Cooper

      filed a motion to dismiss the petition for judicial review, arguing that HRC

      Hotels lacked standing. The trial court ultimately granted the motion to

      dismiss, ruling that it did not have subject matter jurisdiction over the appeal

      because HRC Hotels lacked standing. HRC Hotels appealed, and this court

      reversed. We concluded that the standing requirements of Ind. Code Ann. §

      36-7-4-1603 (West, Westlaw current with all 2015 First Regular Session of the

      119th General Assembly legislation effective through June 28, 2015) are

      procedural rather than jurisdictional and therefore the trial court did have

      subject matter jurisdiction. Further, we held that the trial court should allow I–

      465, a real party in interest, to be substituted as the plaintiff and proceed to the

      merits of the petition for judicial review.

[5]   The case was remanded and the trial court conducted a review of the BZA’s

      grant of Myers Cooper’s application for a variance. At this hearing, I–465

      detailed the nature of its objections to the variance, including among others, the

      following: 1) Having more than 200 dogs within 45 feet of the hotel next door

      Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015     Page 3 of 15
      would present a “serious noise issue” for hotel guests, Appellant’s Appendix at 26;

      and 2) granting the variance would decrease the value of adjacent property

      because if a person was driving in the area and looking for a hotel “and it’s next

      to a dog boarding facility, and there are dogs out in the yard, you’re going to be

      much more likely … to drive right on by and try to find someplace that’s a little

      more peaceful and in a more neighborhood like setting.” Id. at 42.


[6]   In support of its petition for a variance, Myers Cooper offered detailed

      information1 about its plans for the PetSuites facility, including: 1) the building

      is attractive in design and includes cupolas, a pitched roof, stone wainscoting,

      and shuttered windows; 2) dense landscaping would be used to screen the

      outside play area for dogs, which would be oriented toward the nearby

      interstate and away from neighborhoods and surrounding businesses; 3) the

      outdoor play area would be buffered from the western and northern boundaries

      by an eight-foot-tall acoustical CMU block wall in order to mitigate the sound

      of dogs barking; and 4) dogs would be permitted outdoors in limited numbers

      only between the hours of 7:00 a.m. and 8:00 p.m., during which time PetSuites

      staff members would take each dog outside for fifteen minutes in the morning

      and afternoon. Myers Cooper also presented evidence that the Pike Township

      Residents Association (the PTRA) voted unanimously to support the variance,

      and the PTRA concluded that the PetSuites development would bring “much-




      1
        Much of this information was presented in a BZA staff report, which was supplemented with additional
      material following an indecisive October 9, 2012, vote by the BZA. With the full report, including the
      additional material, in hand, the BZA voted on November 13, 2012, 3-2 in favor of granting the variance.

      Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015                        Page 4 of 15
      needed property tax revenue to the city of Indianapolis and Pike Township.”

      Id. at 123. Following the hearing, the trial court denied I–465’s petition for

      judicial review and affirmed the BZA’s zoning decision. This appeal ensued.

[7]   A zoning board may, within its discretion, approve or deny a variance from the

      terms of the applicable zoning ordinance. Schlehuser v. City of Seymour, 674

      N.E.2d 1009 (Ind. Ct. App. 1996). Pursuant to I.C. § 36-7-4-918.4 (West,

      Westlaw current with all 2015 First Regular Session of the 119th General

      Assembly legislation effective through June 28, 2015), in order to obtain a

      variance a petitioner must demonstrate that each of the following elements is

      present:

              (1) [T]he 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;
              (3) the need for the variance arises from some condition peculiar to the
              property involved;
              (4) the strict application of the terms of the zoning ordinance will
              constitute an unnecessary hardship if applied to the property for which
              the variance is sought; and
              (5) the approval does not interfere substantially with the
              comprehensive plan adopted under the 500 series of this chapter.
      When reviewing a zoning board’s decision on a request for a variance, we apply

      the same standard as the trial court. Caddyshack Looper, LLC v. Long Beach

      Advisory Bd. of Zoning Appeals, 22 N.E.3d 694 (Ind. Ct. App. 2014). We presume

      a zoning board’s determination is correct and “afford great weight to the

      decision of the board ... by virtue of its experience in this given area.” Burcham

      Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015          Page 5 of 15
      v. Metro. Bd. of Zoning Appeals Div. I of Marion Cnty., 883 N.E.2d 204, 216 (Ind.

      Ct. App. 2008) (quoting City of Hobart Common Council v. Behavioral Inst. of Ind.,

      LLC, 785 N.E.2d 238, 255 (Ind. Ct. App. 2003)). We will reverse a zoning

      board’s decision only where a clear error of law has been demonstrated.

      Burcham v. Metro. Bd. of Zoning Appeals Div. I of Marion Cnty., 883 N.E.2d 204.


[8]   It is not within our province in reviewing such a decision to try the facts de novo

      or substitute our judgment for that of the zoning board. Id. We may provide

      relief only if we determine that the party seeking relief was prejudiced by a BZA

      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 Ann. §

      4–21.5–5–14(d) (West, Westlaw current with all 2015 First Regular Session of

      the 119th General Assembly legislation effective through June 28, 2015); see

      Caddyshack Looper, LLC v. Long Beach Advisory Bd. of Zoning Appeals, 22 N.E.3d

      694. In making these determinations, we cannot reweigh the evidence or

      reassess witness credibility. Burcham v. Metro. Bd. of Zoning Appeals Div. I of

      Marion Cnty., 883 N.E.2d 204. Instead, we accept the facts as found by the

      zoning board. Id. A zoning board’s determinations as to questions of law,

      however, are not entitled to deference and are reviewed de novo. Id. As the

      party challenging the BZA’s decision, I–465 bears the burden of demonstrating

      the decision was invalid. I.C. § 4–21.5–5–14(a); I.C. § 36–7–4–1614(a) (West,

      Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015    Page 6 of 15
       Westlaw current with all 2015 First Regular Session of the 119th General

       Assembly legislation effective through June 28, 2015).

[9]    At the hearing before the trial court, I–465 conceded that the first element, i.e.,

       that approval of the variance will not be injurious to the public health, safety,

       morals, and general welfare of the community, had been adequately

       established.

[10]   The second element Myers Cooper was required to establish was that the use

       and value of the adjacent area will not be affected in a substantially adverse

       manner. I–465 claimed that the value and use of its adjoining property would

       be adversely affected because of the noise that barking dogs would generate,

       and generally that the sight of dogs next door to its hotel would cause potential

       hotel patrons to drive elsewhere and seek accommodations not so-situated. The

       BZA found that Myers Cooper had addressed these concerns, and thus

       established the second element, by noting first that PetSuites is an upscale pet

       resort with a national reputation for high-quality service, utilizing award-

       winning building designs. The BZA also noted that the development of this

       vacant property would energize commercial activity and attract consumer

       spending, thereby helping to increase property values in the area. The evidence

       supported these findings.

[11]   We note that there was also evidence that specifically addressed the noise

       concerns I–465 expressed. Myers Cooper retained eNoise Control, an expert in

       the field of noise control, to study the effect on the surrounding properties of


       Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015    Page 7 of 15
       dogs barking in the proposed facility’s outdoor play area. eNoise Control

       conducted a study and submitted written findings and recommendations. It

       noted that none of I–465’s hotel rooms face the proposed facility, but they do

       face nearby Interstate I-465. The study found that noise from traffic on the

       interstate is louder than the noise that would be created by barking dogs in the

       play area. Thus, it found that dogs barking in the play area will not increase the

       perceived sound level or measured sound level at the property line of the

       Property. Further, assuming the current ambient traffic noise, the installation

       of the promised sound wall, and that hotel guests would keep windows closed,

       eNoise Control concluded that hotel patrons inside the hotel will not hear dogs

       barking. Concerning future uses on the adjoining property on the opposite side

       of PetSuites proposed facility, eNoise Control concluded that they will be

       located too far from the Property to be affected by any noise from the proposed

       facility.

[12]   eNoise Control also submitted a letter from a Homewood Suites hotel in

       Lexington, Kentucky, which is located adjacent to an existing PetSuites facility.

       That letter stated that since the opening of the Homewood Suites in Lexington,

       “there have been no environmental or noise issues with PetSuites.” Appellant’s

       Appendix at 13. Although the BZA did not mention the noise issue in its

       findings with respect to this element, this evidence specifically addressed the

       major concern expressed by I–465 in opposing the variance. It therefore

       supports the finding that the value of I–465’s property will not be diminished.




       Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015   Page 8 of 15
[13]   In light of the foregoing, we conclude that I–465 did not carry its burden of

       demonstrating that the trial court committed a clear error of law in finding that

       the use and value of the adjacent property will not be adversely affected by the

       granting of the variance. See Caddyshack Looper, LLC v. Long Beach Advisory Bd.

       of Zoning Appeals, 22 N.E.3d 694.


[14]   We turn now to the next element that Myers Cooper was required to establish,

       i.e., that the need for the variance arises from some condition peculiar to the

       property involved. The peculiarity in question must relate to the specific

       features of the property, such as unusual shape or relatively small acreage, see

       Metro. Sch. Dist. of Washington Twp., Marion Cnty. v. Janssen, 158 Ind. App. 234,

       302 N.E.2d 541 (Ind. Ct. App. 1973) (when viewed in conjunction with the

       adjoining commercial use and railroad tracks, unusual shape and relatively

       small acreage was found to be sufficient evidence of the peculiar condition in

       this context), not merely the owner’s desired use of the property.

[15]   The BZA entered the following findings of fact with respect to this element:

               The current C-6, thoroughfare commercial district, does not provide
               for a variety of specific service uses which are appropriate for interstate
               adjacent sites and which are permitted in preceding commercial zones
               (C-4 & C-5). The proposed use relies on visibility and accessibility
               offered by interstate adjacent sites. Proposed use is appropriate for an
               interstate adjacent site and the thoroughfare commercial district as
               communities seek to buffer neighborhood districts from the intensity of
               interstate activity.
[16]   Appellant’s Appendix at 129. I–465 claims that these findings of fact say nothing

       about the condition of the property, whether peculiar or not, and therefore are


       Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015          Page 9 of 15
       not pertinent to this element. Accordingly, I–465 argues, these findings are

       inadequate to support the conclusion that the need for a variance arises from a

       condition peculiar to the Property.


[17]   Even were we to assume that I–465 has a point in this regard, this is not to say

       that there was no evidence presented by Myers Cooper that would support the

       conclusion that this element was established. In fact, the trial court aptly

       summarized this evidence, which it described as “substantial”, as follows:

               As depicted in the Indy GIFs Map included in the BZA staff report
               and the amended site plan, the Site is a dead-end site with limited
               access. There is no direct access from I–465 or Michigan Road to the
               Site. The Site is relatively small and is an unusual “flag-like”
               configuration. It is much narrower than the two adjacent hotel parcels
               and accommodates the limited parking. The Site’s small size and
               unusual shape limit the development that could occur on the Site. The
               Site’s restrictive zoning classification, location, size and configuration
               are conditions that support the BZA’s finding that the need for the
               variance arises from conditions peculiar to the Site.
       Id. at 14 (internal citations to record omitted). I–465 claims, however, that

       Myers Cooper offered no such evidence in the proceeding before the BZA. In

       an attempt to remedy the “fatal flaw in the BZA’s Decision”, the argument

       goes, Myers Cooper raised the issue of the irregular shape, size, and condition

       of the Property for the first time in its petition for judicial review. Id. at 15. The

       evidence germane to this allegedly new claim was what I–465 describes as “a

       paper diagram of the various zoning districts in the area, which included a

       shaded region purportedly depicting” the Property. Id. According to I–465, the

       trial court exceeded its purview in “relying upon this post hoc evidence to

       justify the property use variance after the fact.” Appellant’s Brief at 15.
       Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015         Page 10 of 15
[18]   We first observe that the “paper diagram” to which I–465 refers is indeed a

       depiction of the zoning districts in the area, which was included in the staff

       report presented to the BZA, and does reflect the shape, size, and condition of

       the property. And yes, those characteristics of this parcel of real estate, as

       depicted in the diagram, appear to be fairly described as “irregular.” This is

       not, however, the only peculiarity of the Property that was presented to the

       BZA. The BZA determined that the Property is adjacent to an interstate and

       serves as a buffer between residential neighborhoods and commercial interstate

       activity. Contrary to I–465’s assertion, this determination also relates to the

       peculiarity of the Property. In reaching this conclusion, we reject the notion

       that “peculiarity” in this context refers only to size and shape. See, e.g., Bowman

       v. Metro. Bd. of Zoning Appeals of Marion Cnty., 165 Ind. App. 212, 218, 331

       N.E.2d 739, 742 (1975) (considering a relatively small piece of real estate

       without public frontage and zoned for special use as a religious retreat to be

       “saddled” with a condition peculiar to the property where other land in the area

       was of a residential or agricultural use with high quality homes); Metro. Sch.

       Dist. of Washington Twp., Marion Cnty. v. Jansen, 158 Ind. App. 234, 302 N.E.2d

       541 (the Board was justified in finding the need for the variance arose from a

       condition peculiar to the property where there was evidence that the unusual

       shape and relatively small acreage, when viewed in conjunction with the

       adjoining commercial use and railroad track, made the property unsuitable for

       development as either an apartment complex or an agricultural use); Metro. Dev.

       Comm’n of Marion Cnty. v. Troy Realty, Inc., 150 Ind. App. 213, 275 N.E.2d 845

       (1971) (affirming the issuance of a variance where evidence indicated the
       Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015   Page 11 of 15
       property was situated at one corner of a heavily trafficked intersection making it

       more affected by noise and fumes than the surrounding area and the area was

       lower and more adversely affected by water drainage than the surrounding

       neighborhood); Vogelgesang v. Shackelford, 146 Ind. App. 248, 254 N.E.2d 205

       (1970) (affirming a variance where the parcel was located on a major

       thoroughfare and adjacent to a gas station and riding stable, making the site

       unsuitable for the single-family residential use for which it was zoned).


[19]   The BZA determined that although the Property is situated next to an interstate

       highway, Myers Cooper’s proposed use, which relies on visibility and

       accessibility such as is offered by an interstate, could serve as a buffer for nearby

       residential neighborhoods. Also in support of this conclusion, there was

       evidence that the Property is a dead-end site with limited access. It is ideal for

       travelers who wish to board their pets when leaving for a trip, thus making it

       uniquely appropriate for the proposed use. Moreover, its unusual size and

       shape, as depicted in the diagram, also render it appropriate for the proposed

       use. Therefore, the evidence supported the BZA’s finding that the need for a

       variance arises from the aforementioned “peculiar” conditions, which in turn

       supported the BZA’s granting of the variance.


[20]   The fourth element is that the strict application of the terms of the zoning

       ordinance will constitute an unnecessary hardship if applied to the Property.

       “The determination of whether there is an unnecessary hardship justifying the

       grant of a variance is a question of fact for the board of zoning appeals.” Bd. of



       Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015   Page 12 of 15
       Zoning Appeals of City of Whiting, Lake Cnty. v. McFadden, 166 Ind. App. 534, 537,

       337 N.E.2d 576, 578 (1975). Moreover,

               [t]he law is clear and definite in its declaration that … economic
               opportunity or loss [cannot] enter into the determination of the
               existence of unnecessary hardship. …
               The determination of the existence of an unnecessary hardship is
               governed by all the relevant factors which, when taken together,
               indicate that the property cannot reasonably be put to a conforming
               use because of limitations imposed upon it by the ordinance. It must
               also be shown that the land involved cannot yield a reasonable return
               if used only for the allowed zoned purpose, and that the use authorized
               by the variance will not alter the essential character of the locality.
       Id., 166 Ind. App. at 539, 337 N.E.2d at 579-80 (quoting Light Co. v. Houghton,

       141 Ind. App. 93, 96-98, 226 N.E.2d 341, 343-44 (1967)).

[21]   The BZA found this condition was met because C-6 zoning would permit such

       uses as adult entertainment, car washes, gas stations, boarding houses, bars,

       and “numerous other more intense uses which should legitimately be isolated

       from the neighborhood districts.” Appellant’s Appendix at 14. Myers Cooper’s

       proposed use was in keeping with “the overall theme of service uses permitted

       in the C-6 thoroughfare commercial district.” Id. at 14-15. Again, I–465 claims

       that the BZA’s findings of fact “do not refer to unnecessary hardship and have

       no bearing whatsoever on the unnecessary hardship analysis.” Appellant’s Brief

       at 17. To the contrary, the BZA’s findings indicate its determination that the C-

       6 zoning permits only limited uses, including far more commercially intense

       uses than Myers Cooper’s proposed use. The BZA was within its discretion to

       determine that it would constitute an unnecessary hardship to permit those


       Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015      Page 13 of 15
       commercially intense uses, but not permit what “is essentially a hotel for pets.”

       Appellant’s Appendix at 129.


[22]   The fifth and final element was that the approval would not interfere

       substantially with the comprehensive plan for the area. The comprehensive

       plan for this area recommends commercial uses for the Property, including

       specifically a “broad range of retail, personal, professional and business

       services.” Id. at 16. The BZA found that granting the variance would not

       interfere substantially with the comprehensive plan because the plan calls for

       interstate-related, service-oriented uses. The BZA found that “the pet care

       industry is evolving to more conveniently situated upscale facilities providing a

       higher level of service and accommodating increased frequency of visits.” Id. at

       129. The evidence demonstrated that PetSuites provides a service that is retail,

       professional, and business in nature. Thus, there was evidence to support the

       BZA’s determination that granting the variance would not substantially

       interfere with the comprehensive plan for the area.

[23]   In summary, after reviewing the record before us, we conclude that the BZA’s

       decision to grant the variance was based upon its determination that Myers

       Cooper had established the five elements required to justify a variance, and its

       decision was supported by adequate findings, which in turn were supported by

       the evidence, and therefore not clearly erroneous. Accordingly, we affirm the

       BZA’s decision.

[24]   Judgment affirmed.


       Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015   Page 14 of 15
Baker, J., and Najam, J., concur.




Court of Appeals of Indiana | Opinion 49A05-1409-PL-403 | June 18, 2015   Page 15 of 15
