Thursday, December 31, 2009

Boards of Zoning Appeals Post Lousy Year of Decisions

One of the things I did during my hiatus from this blog, was to begin a review of the 2009 voting record of the City's Boards of Zoning Appeals (BZA) on behalf of the Marion County Alliance of Neighborhood Associations (McANA). Details of the overview have been posted on McANA's website, here. (this is a pdf file and you will need Adobe Acrobat Reader to view it).

The results show a particularly poor record of decisions by the BZAs this past year. Of the 144 requests for variances for which they held a hearing, they denied only 20 (a denial rate of 14%). Compare this with the recommendation of the Current Planning Staff, which serve as the urban planning professional support staff for the Metropolitan Development Commission and the BZAs, who recommended the Boards vote to deny 99 of the requests (a recommended denial rate of 69%). The paucity of denials was so bad that none of the three Boards denied a single variance request until April 14 this year ! The individual denial rates of sitting members of the Boards (5 members per Board or 15 total members) ranged from a low of 5% to a high of 68%. Board I denied 15% of the variance requests it heard compared to staff recommendation of 75% denial. Board II denied 18% compared with a recommendation of 67% denial. And, Board III denied just 7% of the variances it heard compared with a recommendation of 68% denial.

So, why should you care? If you are a property owner, the impact of these variances can be felt directly upon your property value and your quality of life.

A variance gives a property owner the right not to obey a law that all others in Marion County must obey. State law set up two types of variances, both of which require proof that some aspect of the property itself dictates that an exception be made. Among other things, for a variance of use a petitioner is supposed to prove that "The strict application of the terms of the zoning ordinance constitutes an unusual and unnecessary hardship if applied to the property for which the variance is sought." And, among other things, the petitioner who requests a variance of development standards is supposed to prove that "The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property." But, state law is routinely ignored by the BZAs and the so-called 'proof' offered is often circular and irrelevant logic. For instance, a popular recital of proof of the 'practical difficulty' is that it is not legal.

I believe that it would be in the public interest if, at the beginning of each hearing, someone read out loud the "Findings of Fact" form filled out as the proof of a need for a variance. This would put the State law requiring proof front and center in the hearing and it would expose to the viewing public the ridiculous nature of the proof often offered.

Would you want your neighbor to be able to park a semi at their house? The Boards granted at least two such requests this year. There can be no aspect of the property, however, that dictates that a semi must be parked at a house or else the property could not be used as a residence. That is exactly what State Law requires be proven.

Laws impacting real estate have a long history of a push and pull between the right of a property owner to do as they please on their property, and the right of a community to protect its interests in a well planned, well executed and well maintained urban layout. The courts have held that in order to compromise the unfettered rights of a property owner, a city must demonstrate a broader community interest by first creating a comprehensive plan that includes the recommended areas for the different types of uses. Once that has been established, the city may require zoning of all parcels for a single type of use (industrial, commercial or residential as examples). But, wait, there's more ! Once a comprehensive plan has been created, but not before, a city may also establish building codes requiring anything from indoor plumbing, running water, and safety features for electric and structural plans to setbacks and building sizes. But, because there is that tension between property rights and the community interest, any local laws that involve real estate property must offer the property owners the opportunity to prove that they deserve an exception to any one of those laws. These are the variances that the BZAs rule on.

In Indianapolis, the zoning and variance aspects of real estate law are embodied in the Metropolitan Development Commission, the Boards of Zoning Appeals, (the members of both bodies are appointed), and the Department of Metropolitan Development (which reports to the Mayor and is staffed with paid positions). The new Office of Code Compliance (OCE; which also reports to the Mayor and is staffed with paid positions) is the agency that oversees the enforcement of the City's real estate codes and laws. So, as a new house is being built, a permit is required and various inspections are made throughout the building process to ensure that the City's building standards are being met. Code Compliance relies heavily, and in some places exclusively, on citizen complaints about neighbors who are not obeying a real estate property ordinance. OCE then sends out an inspector who either cites the owner for a violation or who determines that no violation exists.

Those of us who have dealt with neighborhood issues for even a couple of years see this as one ecosystem - with each part dependent upon the other parts. Unfortunately in Indianapolis, the the various City departments and Boards are not coordinating their efforts and are often at odds. For instance, zoning inspectors and neighborhood groups might have been working for years to rid residential areas of commercial vehicles. But, once cited, these property owners have the right to apply for a variance (they have the right to apply before being cited, but most folks seem to live by the motto - it is easier to ask for forgiveness than ask for permission). The BZAs are supposed to ask for proof that the property cannot be used as zoned, in this case as a residence, unless the commercial vehicle can be parked there. Of course, no such proof exists. But, the BZAs operate not as State Law dictates, but by the seat of their pants, each member making up in their own head what compels their approval vote versus their denial vote.

This analysis of the voting record of the BZAs in 2009 demonstrates a clear disconnect with State Law. If they followed that Law and required proof in each case, variances would be rare, not usual. Remember, a variance is the exception to the law that all others in Marion County must obey. It should be hard to get a variance. Worse than that is the disconnect the BZAs have with the whole system of code compliance and how that disconnect is harming the big picture in Indianapolis; where neighborhoods have a chance to protect their quality of life and their property values by insisting that the laws of Indianapolis be uniformly applied.


Anonymous said...

This is a very revealing and unsettling analysis. It'll be interesting to hear the reaction of the appointing entities-- Mayor, Council, and the MDC.

Are there any guiding operating principles for the appointees to the BRA? Do the appointees take an oath to discharge their duties in accord with the law?

Had Enough Indy? said...

anon - The appointees do attend training sessions, but it isn't sinking in very well in my view. I do not believe there is any oath involved.

We just sent out this information and have received no feedback from the appointing bodies as yet. The MDC has already re-appointed its folks to another term. We got this done too late for any direct impact there.

But, more important perhaps, is to strike up the topic for discussion around real data and not just personal anectodes.

Pete Boggs said...

It's tempting to consider this "look the other way" mentality as a misguided rationale for consumerism, retail sales, etc. ("economic activity" viewed in a vacuum devoid the reality of expense); the same, excusing illegality where aliens are concerned.

"In this economy," it's likewise tempting for non-business or non-payroll making folks to confuse any activity at all (variance as an expression of taxable use & commitment) as better than the alternative, an exodus of people, investment & market; never bothering to expend the energy or understand root problems in pursuit of real solutions.

Local real estate news is high taxes & foreclosures. By contrast, any interest in local real estate, even in the specious form of a variance, posed as "progress." IPS is evidence of a perfectly failed vision, for which the reality & sentimental scam of "public investment" is evaporating.

Anonymous said...

MCANA and their board once again are attempting to use the lie of "statistics" and a flawed study to support a conclusion reached prior to any alleged "study". MCANA's real issue is their frustration that no one listens to them after 10 years of crying wolf. After 10 years of going to these hearing, how can they not see that the majority of the people who are granted these variances are the very people who live in the neighborhoods MCANA pretends to represent. The truth is that right after this "study" was completed, MCANA asked the DMD staff if they thought the approval/rejection pattern for variances over the last year or so was significantly different than the rates over the past decade. Based on DMD's own records from prior years, DMD specifically told MCANA that they saw no basis for any conclusion that the current boards were performing any differently than prior boards. MCANA barged ahead, ignoring that evidence.

BZA's exist to rescue those unfairly impacted by a zoning ordinance. The types of issues addressed in a zoning ordinance could not possibly work fairly for everyone, no matter how detailed it was. Without a BZA the City would be defending hundreds of lawsuits every year to resolve these conflicts.
Out of 800,000 residents in Marion County, about 400 to 500 people a year chooose to spend the several thousand dollars it takes to file for a variance. It is an open public process, requires public notice to all impacted neighbors, encourages the involvement of anyone who has concerns (legitimate or not). The findings of fact are displayed and used in training (4 per year). Questions from board members and discussion are encouraged. NO BACK ROOM DEALS ARE STRUCK, NO PAYOLA, NO BRIBES, NO PRIOR CONTACT WITH BZA MEMBERS, PERIOD. Two of the findings are directly tied to evaluating the potential impact on the use and value of the immediately impacted properties around the property. Neighbors who have concerns about the possible impacts on their properties or their communities are heard, and when their concerns cannot either be resolved via "conditions" added to the variance, or reasonably determined to be insignificant or false, the variance is denied.

MCANA has decided to attack the board members personally and hopefully get them kicked off and replaced with someone sympathetic to MCANA. So much for a fair process or unbiased boards!

The primary preparer of this "study" holds herself out as a Scientist. Please - comparison of one board's votes to another is impossible since each board hears only their specific cases. Variance cases are each too different to ever be lumped together like this. Higher approvals actually would be expected in tough times simply due to the reduction in the numbers of "stupid" or borderline requests that get filed in better times. Finally, board decisions routinely conflict with staff's recommendations. Again, the vast majority of these cases are changed or worked out between the time the staff report is written (10 days ahead of the hearing) and when the board votes. Staff actually does not hear most of the evidence at all, and their recommendations rarely even address whether the findings can be met or not. Staff primarily defends the existing ordinance and the comp plan(only one factor). If Staff was right all the time, there would be no need for a variance board. Again, staff is absolutely not upset or concerned about the approval/denial rates of the boards.

The City or the process are not biased against the neighborhoods. MCANA is simply finding a new "quest" which might scare people into thinking that they really need organizations like MCANA. If you want to chase demons that do not exist, then MCANA is for you. For the rest of us, MCANA's 15 minutes of fame expired long ago.

Had Enough Indy? said...

anon 7:00 -- I not only hold myself out as a Scientist, holding a B.S. in Mathematics and a Ph.D. in Biochemistry, I also hold myself out to be the author of this blog, thank you very much.

Let me correct the most egregious errors, ignore the other errors, and then, hopefully we can move forward with a discussion of differences of opinion.

First, we did not inquire of DMD whether the data for 2009 demonstrated a pattern different from that seen in previous years. In fact, DMD has not done such analyses. I have heard they hope to do so going forward using the capabilities of their new Accella (sp?) program.

The statement "Again, the vast majority of these cases are changed or worked out between the time the staff report is written (10 days ahead of the hearing) and when the board votes" is simply not true. The study looked at those petitions where a hearing was held. In those 144 cases, Staff still recommended denial at the hearing for 99 of them. Only 20 were denied by the BZAs.

The statement "Staff actually does not hear most of the evidence at all, and their recommendations rarely even address whether the findings can be met or not" is simply not true. Even a cursory perusal of a staff report shows a broad examination of the issues and the findings of fact.

Both of these statements misrepresent the effort, talent, and expertise that Staff actually brings to the table.

anon 7:00 you do not have to like or respect McANA. It is clear from your characterization of our methods and motives that you do not. You do not have to like or respect me.

I hope that the data can spur a community discussion of the true role of the BZAs and how they should approach a decision to approve or deny a grant of Variance in accord with State laws.

Anonymous said...

It is very difficult to evaluate a Board's performance by voting statistics. The details of the cases and the specifics of the decision matter so much more. The data may be a starting point for discussions, but they shouldn't be used in isolation to determine who should or should not be appointed.

Statistical agreement with staff does not necessarily translate into a better Board member if the decisions were made to due a lack of understanding of the issues or for reasons unrelated to the evidence presented at the hearing.

There is probably not much difference from the planners' perspective regarding the performance of the boards (as measured by the planner's unhappiness with the Boards over the years).

They were definitely unhappy under Peterson (frankly, from what I have heard, many of the planners left because of their disillusionment with the Boards, HE (especially the HE) and Commission (but even more so because of the administration and other departments and divisions perceived lack of support).

And, they were unhappy under Goldsmith (of course, Goldsmith fired a bunch of them or they fled before he could) and are likely unhappy under Ballard, with regard to the BZA, HE and Commission decisions on significant cases and issues. And I would suspect many of them were unhappy under Hudnut. Usually the planners that are not unhappy with decisions don't do much and aren't worth much because they don't care much.

Some planners are more concerned (wrongly, in my opinion) about the Board's total agreement with staff recommendations. Other planners just want the Board to make an informed decision based on the issues presented and fairly evaluate all sides and make a decision that improves the city.

Some are relieved that some cases get approved that staff recommended denial of and some are relieved that some cases get denied that staff recommended approval of (because they believe that the staff recommendation was wrong (usually due to inadequate information submitted by the petitioner or inadequate staff review (yes there are bad planners in the world (and bad attorneys and remonstrators (at least they usually are not getting paid))) or manipulated).

The planners would likely be much less concerned about many of the variance grants, if it was felt that there was relative certainty that the conditions or commitments would be met. Many times the concern is that the conditions offered by the petitioner's the Board and remonstrators are ill-conceived (unenforceable, unimplementable or don't address the actual issues, etc).

The egregious cases that are approved, when standards are not met (large deviations) because of choice, not because of limiting conditions or when generally accepted standards of development are ignored (particularly those creating an adequate built environment (curbs, sidewalks, paving and landscaping)), while at the same time, awards are being given out by the City for Sustainability and Accessibility, are most troubling to the planners.

Now, after nearly 90 years of approving 400-600 variances/year, it would be very unlikely for there to be some dramatic change in the number or percentage of variance grants, but there is no reason that decisions be made that effectively address the issues related to the request. One of the basic tenets of the BZA process is that the Ordinance should be amended or at least reviewed, if the Board is routinely granting variances for specific standards. That does not appear to happen.

The planners usually do address the findings in the staff report or verbally at the hearing during the presentation, probably much more so than in years past.

As for some of the other comments, Review the Staff report and hearing on 1-19-10 for the Regional Center case that was denied (2009-UV2-035 / 1401-1449 MONTCALM STREET & 1402 - 1440

By the way, the BZA, Plat Committee and Commission members do take an oath.

Anonymous said...

I actually think your Degrees increase your culpability here. Based on your education you should know better than to presupppose your conclusions before you even begin collecting data, to ignore easily available evidence which is likely contrary to your conclusions, to limit the test period to a non-representative time frame or circumstance, and most critically to fail to acknowledge uncontrolled and fatal variables in the parameters and data that make the conclusions unsupportable no matter what the raw numbers might appear to show. "Scientists" respect the process, or they and their studies are discredited. When MCANA relies on flawed snapshots and biased "statistics" it risks its reputation as well.

MCANA and its leadership are clearly frustrated that their positions and presentations in case after case are not being supported by these boards very often. After years of such losses, isn't it possible that the positions which many of you take on these issues are too extreme and out of touch? Isn't it possible that hearing the same people come downtown time after time to present the same mostly negative testimony and predictions of doom has earned you a reputation? Does it not seem like a confirmation of that reputation to be the ones personally attacking volunteer board members based on allegations that the ones who don't listen to you enough are mostly co-conspiratos and guilty of making biased decisions? I am curious how you can even explain your behavior towards these board members, let alone justify it?

As to your criticism of my description of the role of Staff, my only conclusion is that you either don't know, or are pretending not to know, how Staff actually operates. Do you really not understand that the law says Staff only makes non-binding recommendations which are to be considered by these boards along with all other evidence. Do you actually think they hear all the evidence or testimony before that Staff report is drafted or presented? Rather than guess, why don't you tell me specifically what you think is wrong with my explanation of staff's role?

Staff is very clear and comfortable with the fact that they are not the ones who make the actual decision as to any finding. They know that they make only a nonbinding recomendation, and that the board is the entity legally charged with making the final decision after all the evidence is heard. Why do you have some problem with that? Do you think we should just abandon the BZA process and let Staff decide these cases? If you were a BZA board member, would you vote with Staff all the time? What if the remonstrators reached agreement with the petitioner and wanted you to approve it, but Staff could not change its recommedation?

As to your second point, what don't you understand here? Staff has no mechanism for updating their written staff reports any later than 10 to 12 days prior to the hearing? Unless specific conditions that were requested by staff in exchange for changing their recommendation (as described in the staff report) are offered at the hearing, the planner at the hearing does not have the individual authority to change the staff's recommendation once it is written, period. What error in my statements on that issue in my prior post do you think you see?

Anonymous said...

I agree with much of what the other anonymous poster states. However, I know that many of the planners who left the City since Hudnut left primarily because they were offered better pay, benefits, etc. by a private firm. The best planners care, but they don't judge themselves or their fellow planners based on how many cases they win or lose. The best planning Staffs as a whole know the difference between their role in defending the ordinance and the comp plan, and getting to deep into remonstrating for policies or agendas not mandated by a crosssection of voters or elected officials, at least as I see it.