Jennifer Nelson for www.theindianalawyer.com
The Indiana Court of Appeals upheld the decision to grant a variance to a company seeking to build an upscale dog and cat boarding and day-care facility on the northwest side of Indianapolis. A hotel located next to the property objected, fearing noise from the animals would deter business.
The case, I-465, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company, 49A05-1409-PL-403, was before the appellate court for the second time. Previously, The Myers Y. Cooper Co., which wants to build the pet facility, appealed I-465 LLC’s petition for judicial review after the Marion County Board of Zoning Appeals granted Myers’ request for the variance. I-465 LLC owns the Hilton Homewood Suites Hotel directly west of the proposed facility. HRC Hotels, I-465 LLC’s parent company, did not participate in the public zoning hearing, but was the party to petition for judicial review.
The Court of Appeals determined that I-465 LLC did have standing to pursue the petition despite its parent company filing the petition. The case went to the trial court, which denied the petition for judicial review and affirmed the variance.
In Thursday’s decision, I-465 LLC appealed, arguing that the variance should not have been granted. It claimed its business would be hurt by the pet facility because patrons would not want to stay next to a facility where dogs would be out barking.
In order to grant the variance, Myers had to prove five elements: 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; (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.
The Court of Appeals unanimously decided Myers Cooper had established the five elements required to justify the variance. The BZA’s decision was supported by adequate findings, which in turn were supported by the evidence, and therefore not clearly erroneous.
