CIRCLE CITY WEEKLY RENTALS LLC v. METROPOLITAN BOARD OF ZONING APPEALS DIVISION (2022)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellant-Petitioner, Circle City Weekly Rentals, LLC (Circle City), appeals the trial court's Order, which affirmed Appellee-Respondent's, the Metropolitan Board of Zoning Appeals (BZA), denial of Circle City's petition for a zoning variance.

[2] We affirm.

ISSUE

[3] Circle City presents this court with one issue on appeal, which we restate as: Whether the BZA's decision, denying Circle City's petition for a zoning variance, was arbitrary and not supported by the evidence.

FACTS AND PROCEDURAL HISTORY

[4] Circle City owns the real estate located at 3544 Carrollton Avenue, in Indianapolis, Indiana (Property). The Property, which is situated in the Watson Park historic neighborhood, is zoned as D-5 and does not permit multifamily use. On or around 1990, the building on the Property received a permit to be remodeled to a ten-unit multi-family home and has been continuously used as such. Although a permit was granted for the remodel of the Property, no zoning variance was requested or issued.

[5] After obtaining an ownership interest in the Property on April 18, 2018, Circle City received zoning enforcement letters notifying that the Property could not be used as a multi-family dwelling. On April 1, 2020, Circle City filed a petition for a variance of use of the Consolidated Zoning and Subdivision Ordinance to legally establish the Property's use as a multi-family building within the Watson Park historic neighborhood. Prior to a public hearing on Circle City's petition, the Department of Metropolitan Development issued its staff report, recommending approval of the request for a zoning variance on the condition that Circle City correct all zoning violations, which consisted of: (1) paving and striping the parking lot within six months of the grant of the variance; (2) enclosing the dumpster; (3) planting and maintaining a minimum of two trees in the front yard; and (4) submitting a final site plan, which shows that the parking area supports a sufficient number of striped parking spaces with adequate space for maneuverability, and which shall be subject to the administrator's approval prior to the issuance of an improvement location permit. In June 2020, while Circle City was trying to convince the BZA of its commitment to correcting the zoning ordinance violations, it was simultaneously attempting to “flip” the Property for $800,000 more than its purchase price two years earlier. (Appellant's App. Vol. III, p. 77). At the same time, after Circle City committed to list the Property for one-year leases only instead of shared housing, it continued to market the Property as weekly rental shared housing.

[6] On August 4, 2020, a public hearing was conducted. During the hearing, multiple letters of neighborhood associations were admitted into evidence which all advocated against the approval of the variance. Several remonstrators testified to the poor condition of the Property and to the “over 75 police runs to the [P]roperty over 11 [months of] the past one year, many of which [we]re violent in nature.” (Appellant's App. Vol. IV, p. 31). At the close of the public hearing, the BZA voted to deny Circle City's variance petition and, on September 1, 2020, issued its negative findings of fact supporting its denial of the variance petition.

[7] In its negative findings, the BZA based its denial of the variance petition on four conclusions. Based on the evidence submitted, the BZA first concluded that Circle City failed to establish that the variance would not be injurious to the public health, safety, morals, and general welfare of the community because the Property has had unresolved zoning violations since 2018 for the failure to enclose an existing dumpster, failure to comply with use specific standards and zoning district development standards for the D-5 district, and failure to provide a hard surface parking area. Second, the BZA concluded that Circle City failed to prove that the grant of the variance would not cause the use or value of the area adjacent to the Property to be affected in a substantially adverse manner because the required number of parking spaces for the ten units would have congested the heavily used on-street parking available. Third, Circle City failed to carry its burden of proof to show that the strict application of the terms of the zoning ordinance would constitute an unusual and unnecessary hardship if applied to the Property, in that the Property is already residentially zoned in the D-5 district and the existing multifamily building could also be used for a permitted use in the D-5 district. Lastly, the BZA concluded that Circle City failed to establish that the grant of the variance would not interfere substantially with the comprehensive plan because the plan recommended five to eight residential units per acre development and Circle City's petition exceeded this density.

[8] On September 3, 2020, Circle City filed its writ for certiorari, appealing the BZA's denial of its petition, and on March 29, 2022, the trial court issued its Order, affirming the BZA's decision.

[9] Circle City now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[10] Circle City appeals the trial court's affirmance of the BZA's denial of its petition for a zoning variance. 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, 1012 (Ind. Ct. App. 1996). Pursuant to Indiana Code section 36-7-4-918.4, in order to obtain a variance a petitioner must demonstrate that each of the following elements is present:

(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.

[11] 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, 701 (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 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. Id.

[12] 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 § 4–21.5–5–14(d). In making these determinations, we cannot reweigh the evidence or reassess witness credibility. Burcham, 883 N.E.2d at 216. Instead, we accept the facts as found by the zoning board. Id. A zoning board's determination 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, Circle City bears the burden of demonstrating the decision was invalid. I.C. §§ 4-21.5-5-14(a); 36-7-4-1614(a).

[13] With respect to the first statutory prong of Indiana Code section 36-7-4-918.4, the BZA determined that the zoning variance requested by Circle City would be injurious to the public health, safety, morals, and general welfare of the community due to the unresolved zoning violations dating back to 2018. On appeal, Circle City does not argue that these violations do not exist or are in error, instead it relies on its articulated commitment to the BZA to fix these violations if the variance is approved. Clearly, in denying Circle City's request on this ground, the BZA did not find Circle City's commitment credible. The evidence reflects that Circle City had been cited for these violations in 2018, which went unresolved for more than two years with no evidence from Circle City—or even a good faith gesture—that an attempt was made to bring the violations into compliance. Therefore, we find that the evidence supports the finding.

[14] The BZA also concluded that the grant of the variance would cause the use or value of the area adjacent to the Property to be affected in a substantially adverse manner because the required number of parking spaces for the ten units would have congested the already heavily used street parking available. See I.C. § 36-7-4-918.4(2). The evidence reflects that the D-5 zoning district requires one parking space per unit. In support of its argument that it carried its burden of proof, Circle City points to a detailed site plan, accepted by BZA's staff but not yet executed by Circle City, showing seven paved and striped parking spaces on the Property with three on-street parking spaces, as permitted by local ordinance. Circle City further claims that since the property is located near the Red-Line Mass Transit, it is logical to assume that occupants of the Property will use it, thereby lessening the reliance on private transportation. However, while Circle City's assumption amounts to speculation as there is no evidence of occupants actually using the Red-Line Mass Transit, evidence does support that occupants’ vehicles have become disabled and remained parked on the street for significant periods of time, thereby increasing the congestion on Carrollton Avenue and affecting the adjacent properties. As such, the BZA's finding is supported by the evidence.

[15] Turning to the fourth statutory prong,¹ that the strict application of the terms of the zoning ordinance would amount to an unusual and unnecessary hardship if applied to the Property, BZA concluded that no such hardship exists “because the property is already residentially zoned in the D-5 district and an acceptable residential density could be proposed on site. The existing multifamily building could also be used for a permitted use in the D-5 district.” See I.C. § 36-7-4-918.4(4); (Appellant's App. Vol. III, p. 196). Focusing on the permit approving the remodel of the Property to a ten-unit building, Circle City maintains that after thirty years of use as a ten-unit building, “[t]he only way the building can realistically be used for an appropriate D-5 use is to tear it down and rebuild. From a real estate developmental viewpoint, there are no better, realistic options. This represents an unnecessary hardship on the Property which was not given appropriate recognition.” (Appellant's Br. p. 20). However, during the public hearing, Circle City's counsel testified that the peculiar structure of the Property “cannot easily accommodate a different use without any sort of major renovations, or a complete tear down and rebuild of a new structure[.]” (Appellant's App. Vol. IV, p. 9). As the BZA considered this argument and rejected it, Circle City is now requesting us to reweigh the evidence, which we are not allowed to do within the confines of our standard of review. See Burcham, 883 N.E.2d at 216.

[16] In addition, Circle City also points to the arbitrariness of the BZA's denial of its petition with regard to the Property compared to a previous approval of a zoning variance to allow an eight-unit apartment building a mere 128-feet away from the Property. However, the record reflects that this eight-unit apartment building, although in proximity to the Property, is located in a different historic district. Accordingly, we conclude that the BZA's finding is supported by the evidence and is not arbitrary.

[17] Lastly, the BZA concluded that Circle City's request for a variance would interfere substantially with the comprehensive plan because the plan recommends five to eight residential units per acre development and the proposal would exceed this density. See I.C. § 36-7-4-918.4(5). Contending that the Property is within service distance to the Red Line Mass Transit, Circle City points to language of the Red Line Transit Oriented Development Strategic Plan indicating that development of over 15 units per acre at this density is appropriate for all types of mass transit corridors. As such, Circle City maintains that the ten-unit family dwelling falls squarely within those parameters and therefore the denial of the variance was arbitrary. However, despite Circle City's argument, this strategic plan does not allow for unlimited increase in density in the surrounding neighborhoods, but rather calls for improving neighborhood stability and encouragement of transit use. Moreover, evidence was presented that the Property is located in the Watson Park historic neighborhood, which is entirely comprised of single and double-family residences. Increasing the unit count per acre to forty-five if the variance would be granted, would mark a substantial increase in density and impact the stabilization and revitalization efforts of the current land use in the Watson Park historic neighborhood. Circle City's argument that there are other sites in Watson Park historic neighborhood that are multi-family dwellings ignores the reality that those dwellings are either along different and busier thoroughfares or are differently zoned than the Property. Therefore, we conclude that the BZA's finding is supported by the evidence and is not arbitrary.

[18] Since a petitioner for a variance must establish the existence of all of the statutory elements of Indiana Code section 36-7-4-918.4, the failure of proof on any one will be sufficient to defeat his request. See Metro. Dev. Com'n of Marion Cty. v. Camplin, 288 N.E.2d 569, 572 (Ind. Ct. App. 1972). Because Circle City failed to carry its burden with respect to four out of the five statutory prongs, we conclude that the trial court properly affirmed the BZA's denial of Circle City's request for a zoning variance.

CONCLUSION

[19] Based on the foregoing, we hold that the BZA's denial of Circle City's petition for a zoning variance is supported by the evidence and is not arbitrary.

[20] Affirmed.

FOOTNOTES

1.   Because the BZA did not articulate any negative findings with respect to the third prong—the need for the variance arises from some condition peculiar to the property involved—we assume Circle City met its burden of proof. See I.C. § 36-7-4-918.4(3).

Riley, Judge.

[21] May, J. and Tavitas, J. concur