Broad Ripple Parking Garage Denied Variance From Flood Control Ordinance Requirements

On Tuesday the Board of Zoning Appeals unanimously denied the request of the developer of the Broad Ripple parking garage to obtain a variance from the flood control ordinance.  As if to emphasize the wisdom of that decision, the skies opened up and the streets of Broad Ripple flooded about an hour after the vote was taken. Many thanks to Board members, Joanna Taft, Darrell Morton,  Marilyn Halbrook, Mary Clark, and Melissa Coxey for their votes.

This was one of the most unusual variances that I have ever been involved with; not due to the actual variance petition, but some of the unusual goings-on around it.

For those who were not following it, a few entities banded together more than a year ago now, to submit a proposal for a 350 car garage with retail on the first floor.  The winning bidders, the Keystone Group, created an LLC for this specific project and called it 6280 LLC, after the address of the parcel, 6280 N. College.  The City is kicking in $6.34 million from the sale of the parking meters.  I, among others, have tried to get the entire agreement from the City, but no one that I know of has yet been successful.  The total, unverified by public documents, cost of the garage is said to be $12 - $15 million -- depending upon the source of the number.

Last fall the developer filed a number of variances to allow the building to hang over the sidewalks, etc., because the lot had always been too small for the project.  Among that bevy of variance requests was a request for relief from the flood control ordinance.  That particular request, however, was withdrawn with the statement that they would flood proof the building.

For whatever reason, they refiled that request in February, asking that they be allowed to build 4 feet below the required flood protection elevation and to also be allowed not to flood proof the building - which is the allowed alternative if you don't want to elevate a new building that lies within the 100 year flood plain.  According to the City's floodplain management webpages, 18% of Indianapolis is in flood prone areas.  Information we got from the Department of Code Enforcement, was that over 28,000 parcels are eligible for flood insurance.

The problem with granting variances from the flood control ordinance is that the City risks higher premiums from the National Flood Insurance Program, or to be tossed from that program entirely -- leaving property owners who depend upon flood insurance not so high and not so dry.

But, the 6280, LLC, folks were selling the idea that the incomplete floodwall being built nearby, would protect their property and so it was okay.  They claimed that if they were required to follow the City's ordinance, then the building would have to have a smaller footprint and they could not put in as much retail - making it impossible to cover costs.  Also, the cost of building up or floodproofing was not contained in the final agreement with the City, and this additional cost would kill the project.

Long story short - by the end of the hearing they said they could afford to floodproof if the City got in trouble with the National Flood Insurance Program/ FEMA for granting the variance.  So the idea that they could not afford to abide by the ordinance was proven false by their own statements.

I handled the remonstrance on behalf of the Marion County Alliance of Neighborhood Associations and Clarke Kahlo for the Merdian Kessler Neighbors Helping Neighbors.  We got able and stalwart support from Councillor Zach Adamson, who is proving to be one of those great Councillors who truly care about what is right for Indianapolis and its residents.  He took time from his schedule each of the three times that the petition was scheduled to be heard to come and testify.  Also showing up to one of the scheduled hearing dates, but unable to make it on Tuesday, was Councillor Pam Hickman, who sent a letter in to the Board that was helpful.  Many thanks to Adamson and Hickman.

Now, on to the odd part of this variance - again not the petition itself but the odd stuff around it.

Thankfully, the team who oversees the floodplain management, spearheaded by Donna Price at DCE, and the current planning staff, led by Larry Calloway for this petition, came out in opposition to the variance, primarily because it could put Indy's participation in the National Flood Insurance Program in jeopardy of higher premiums or being kicked out of the program entirely.

Just about an hour before the first scheduled time for hearing this petition, we got word that the petitioners would be asking for a one week continuance and transfer to Board 3.  It seems they hadn't noticed Staff was recommending denial until the Thursday before the Easter weekend and wanted to do some wagon circling. We did challenge that request saying that some might mistake the request for board shopping (trying to get on the docket of a particular BZA board that could be construed as 'friendly').   The continuance and transfer were granted by a vote of 3 - 2.  Subsequently, two of the Board 2 members felt the need to recuse themselves from hearing the petition.

Less than two hours before the 2nd scheduled hearing, we got word that the petitioners were amending their petition from 4 feet below what is required by the City's ordinance to 2 feet below.  They were stating that this met FEMA's standards.  We could not verify their claims with the information we had at hand and so we asked for a continuance so we could have time to look into this new claim.  Our request was granted and the petition was continued for two weeks and transferred to Board 1.

During that time we tried to arrange meetings with Donna Price and Larry Calloway.  Our requests were pushed aside by their respective bosses with excuses of 'it would take too much time' and 'we are not available', respectively.  In all the years I've been doing this, I have never been told that I could not meet with staff of DCE or DMD.  Finally, we got special dispensation to meet half an hour prior to the 3rd scheduled hearing.

Frankly, if the motivation for blocking us from our requested meetings was to keep our presentation to the Board as uninformed as possible, it failed miserably.  Because we could not get up to speed by consulting with the City's in-house experts, we resorted to plowing head first into FEMA's website.  This website has a ton of information.  Not only that, they have gone to extraordinary lengths to express floodplain issues in common English without a bunch of unintelligible jargon.  So, we got better prepared, I do believe, by being forced to learn this stuff from the Internet.

Nonetheless, all of this was odd and unusual - and I hope not to see such maneuverings again.

Ultimately, the Board voted 5 - 0 to deny the variance request.  The flooding in Broad Ripple that very afternoon will hopefully reinforce the thought among BZA members that the flood plain ordinance serves a larger purpose than smply making building in a floodplain more difficult.  And to add more to the string of serendipity and coincidence, Tuesday was also the two year anniversary of the Meridian Kessler Neighbors Helping Neighbors organization - this successful remonstrance is one of their bigger achievements and a very nice anniversary gift, indeed.

I suspect that the parking garage will be built; that the developer just hoped to get out of the cost to comply with the flood control ordinance.  And for myself, the 5 - 0 vote renews my faith that the system is capable of considering the point of view of the public and making decisions that are in the best interest of the community as a whole.